No. MICT-13-55-A

THE MECHANISM FOR

INTERNATIONAL CRIMINAL TRIBUNALS

No. MICT-13-55-A

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron

Judge William Hussein Sekule

Judge Vagn Prusse Joensen

Judge Jose Ricardo de Prada Solaesa

Judge Graciela Susana Gatti Santana

Registrar: Mr Olufemi Elias

Date Filed: 15 March 2017

THE PROSECUTOR

v.

RADOVAN KARADZIC

Public Redacted Version

RADOVAN KARADZIC’S RESPONSE BRIEF

________________________________________________________________________

Office of the Prosecutor:

Laurel Baig

Barbara Goy

Katrina Gustafson

Counsel for Radovan Karadzic

Peter Robinson

Kate Gibson

No. MICT-13-55-A 2

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 4

II. THE PROSECUTION’S APPEAL .................................................................................. 5

1. The Excluded Crimes were Rightly Excluded .............................................................. 5

A. The Trial Chamber committed no legal error in identifying another

reasonable inference ...................................................................................................... 7

B. The finding that the Excluded Crimes did not form part of the JCE was

reasonable .................................................................................................................... 10

1. The Trial Chamber never found that President Karadzic knew the

Excluded Crimes were necessary to achieve the common criminal purpose.......... 10

2. President Karadzic’s “most important role” does not make his conviction

for the Excluded Crimes through JCE III unreasonable ......................................... 11

3. The concurrent occurrence of the Excluded Crimes does not require a

finding that they were part of the JCE .................................................................... 13

4. The Trial Chamber took into account President Karadzic’s reaction to the

Excluded Crimes ..................................................................................................... 13

5. President Karadzic’s “steadfast” pursuit of the common purpose does not

equate to intent to commit crimes that fell outside it .............................................. 14

6. The Trial Chamber’s findings regarding the other JCE members suffer

from the same flaws ................................................................................................ 14

7. Concluding that the Excluded Crimes fell outside the JCE reflected the

Trial Chamber’s findings and the purpose of JCE liability..................................... 15

C. The Prosecution’s arguments have no impact on the Trial Chamber’s

analysis of President Karadzic’s genocidal intent ....................................................... 16

2. The Actus Reus of Genocide under Article 4(2)(c) was not established .................... 17

A. The Trial Chamber failed to provide a reasoned opinion ...................................... 17

B. Acts Falling under 4(2)(a) and 4(2)(b) may be considered .................................... 17

C. Article 4(2)(c) was not violated in the Detention Facilities ................................... 18

1. Scope of Article 4(2)(c) ...................................................................................... 18

2. Application of Article 4(2)(c) ............................................................................. 20

D. The effect of any error would not require reversal................................................. 27

3. The mens rea for genocide was not established .......................................................... 29

A. There was a reasoned opinion concerning Prijedor ............................................... 29

B. Permanent removal did not preclude genocidal intent ........................................... 34

C. The concept of “destruction” was not limited ........................................................ 38

D. Findings on genocidal intent were not unreasonable ............................................. 46

1. The pattern of the crimes .................................................................................... 47

2. President Karadzic’s and other JCE members’ statements ................................ 58

E. Conclusion .............................................................................................................. 62

4. A life sentence was not required ................................................................................. 63

A. The Chamber’s findings do not “require” a life sentence ...................................... 63

1. Mandatory Life Sentences are not provided ....................................................... 63

2. The Trial Chamber was aware that a life sentence is greater than 40 years ...... 65

3. Sentences in other cases do not demonstrate any error ...................................... 65

No. MICT-13-55-A 3

4. The Trial Chamber provided a reasoned opinion ............................................... 66

B. The Trial Chamber took into account President Karadzic’s abuse of authority

in assessing the gravity of the crimes .......................................................................... 67

C. The Trial Chamber did not err in considering resignation as a mitigating

factors .......................................................................................................................... 68

D. Conclusion .............................................................................................................. 69

III. CONCLUSION ............................................................................................................. 70

No. MICT-13-55-A 4

I. INTRODUCTION

1. The Prosecution and Defence agree on one thing: the Trial Chamber’s Judgement

was flawed. The Prosecution has excelled at pointing out errors in the Trial Chamber’s

approach and reasoning, in a well-researched and well-argued brief.

2. While serious, those deficiencies are not fatal to President Karadzic’s acquittal of

genocide in the Municipalities—a verdict consistent with 14 years of jurisprudence at the

ICTY and ICJ by judges who have examined the same facts and reached the same

conclusion.

3. But the Prosecution’s appeal confirms that the Judgement warrants careful

scrutiny.

No. MICT-13-55-A 5

II. THE PROSECUTION’S APPEAL1

1. The Excluded Crimes were Rightly Excluded

In Brief

The Trial Chamber was not unreasonable in finding that the Excluded

Crimes were foreseeable, rather than intended.

Introduction: Ground 1 suffers from a fatal flaw

4. The Prosecution is asking the Appeals Chamber to find that the Excluded Crimes

were part of the Overarching JCE’s common criminal purpose.2

5. This could have occurred in two possible ways. Either the Excluded Crimes

formed part of the JCE when it came into existence in October 1991, or the JCE expanded

to include the Excluded Crimes after war broke out in April 1992.

6. The Prosecution gives no indication which approach it is advocating. It provides

no assistance to the Appeals Chamber on whether it is being asked to find that the

Excluded Crimes were part of the JCE from its inception or that the JCE later expanded to

encompass these crimes.3 The Prosecution submissions fail to identify the findings

necessary to support either conclusion.

7. Such findings, in fact, do not exist.

8. The JCE came into existence in October 1991.4 The Trial Chamber found that

President Karadzic learnt of the forcible displacement and deportation in April 1992.5 The

findings the Prosecution cited to support its assertion that JCE members embraced a

1 The footnotes in this brief contain standard abbreviations found in the Glossary in Radovan Karadzic’s

Appeal Brief. A new Glossary has not been included in this brief. Instead, the full citations of newly cited

material appear in the footnotes. As with the Appeal Brief, the sources for the confidential version are

hyperlinked to folders provided on DVD to the Chamber and parties, while the sources to the public version

are hyperlinked to public internet sites, when available. 2 Prosecution Appeal Brief, paras. 14, 45, 48. 3 Id. 4 Judgement, para. 3447. 5 Id, para. 3495.

No. MICT-13-55-A 6

pattern of violence, post-date the JCE’s formation, and arise out of the forcible

displacement and deportation itself.6 The idea that the common criminal purpose agreed

upon in October 1991 included, inter alia, murder, extermination, and persecution through

rape, torture, and sexual violence has no basis in the Trial Chamber’s findings. It was not

the only reasonable conclusion available to the Trial Chamber.

9. Turning to the second possibility, a JCE can evolve over time, and can come to

embrace additional crimes.7 Again, the Prosecution is silent if this is the course it is asking

the Appeals Chamber to adopt. In any event, it is not a path that is open to it.

10. A JCE can come to embrace expanded criminal means, as long as the evidence

shows that JCE members agreed on this expansion of means.8 Neither the evidence, nor

the Trial Chamber’s findings, reveal any such agreement among JCE members to expand

the JCE to encompass the additional Excluded Crimes.

11. Nor did the Trial Chamber make the necessary findings identifying the point in

time the JCE’s common objective expanded to include other crimes that were not included

in it.9 While the Prosecution repeats adverse findings for other JCE members and asserts

their preparedness to use violence to carry out the common criminal purpose,10 the critical

findings that would support an expanded JCE are missing. No matter how they are re-

assembled, the Trial Chamber’s findings do not support the conclusion the Prosecution is

asking the Appeals Chamber to draw.

12. The Prosecution’s submissions are anchored in the Trial Chamber findings.11 The

Prosecution arguments centre on the idea that existing factual findings are sufficient to find

that the Excluded Crimes formed part of the JCE. The Prosecution makes no request that

the Appeals Chamber revisit factual findings, make additional factual findings, or give

evidence more (or less) weight. Rather, the Prosecution request is for the Excluded

Crimes’ “reclassification” as Intended Crimes.

6 Prosecution Appeal Brief, para. 45. 7 Krajisnik AJ, para. 163. 8 Id (emphasis added). 9 Id, para. 175. 10 Prosecution Appeal Brief, para. 44. 11 Id, para. 13. See also paras. 4, 10-11, 18, 20-21, 27, 44-46.

No. MICT-13-55-A 7

13. The Trial Chamber found that President Karadzic’s involvement in these crimes

was most accurately characterised as commission through JCE III. The Prosecution

disagrees. This is insufficient to warrant appellate intervention.

14. But in addition to this fundamental flaw, the Prosecution arguments give rise to

other difficulties, addressed in turn below.

A. The Trial Chamber committed no legal error in identifying another

reasonable inference

15. The Prosecution asserts that the Trial Chamber’s finding that JCE I intent for the

Excluded Crimes was not the only reasonable inference “foreclosed” or “precluded” the

possibility of shared intent for the Excluded Crimes,12 and that in doing so, the Trial

Chamber erred in law.13

16. This argument is based on a mistaken premise. Nowhere does the Trial Chamber,

either directly or indirectly, indicate that identifying an alternative inference precluded or

foreclosed the possibility of shared intent for the Excluded Crimes.

17. The Trial Chamber considered whether President Karadzic intended that the

Excluded Crimes be committed. Considering “all of the relevant evidence”, the Trial

Chamber concluded that a finding of intent for the Excluded Crimes was not the only

reasonable one available. 14 In doing so, the Trial Chamber was within its discretion as the

trier of fact. Nothing was “foreclosed”. Nothing was “precluded”. The Trial Chamber

neither misinterpreted the law, nor applied the wrong legal standard, on this point.15

18. The Prosecution argues that the Trial Chamber failed to assess whether

“Karadzic’s willingness to pursue the common purpose with knowledge that it entailed the

commission of the Excluded Crimes reflected his shared intent.”16 This submission is only

possible after the Prosecution reformulates a critical finding.

12 Id, paras. 12, 16-17. 13 Id, para. 16. 14 Judgement, para. 3466. 15 Prosecution Appeal Brief, para. 17. The Trial Chamber did apply the wrong legal standard when

concluding that JCE III liability could be predicated on a crime that “might” be committed. See Radovan

Karadzic’s Appeal Brief, Ground 29. 16 Id, para. 16.

No. MICT-13-55-A 8

19. That Karadzic “did not care enough to stop pursuing the common plan” is not

equivalent to being “willing to pursue the common purpose”.17 Ambivalence does not

equate to willingness. Being “willing” embodies volition on the actor’s part; an active

engagement or readiness, rather than passive acquiescence. This is an important

distinction, both in the Trial Chamber’s findings and in criminal law theory more

generally.18

20. For example, the UK Supreme Court considered this issue when determining the

criteria to be a knowing participant in war crimes and crimes against humanity committed

by an organisation, where the organisation’s purpose went beyond the commission of

crimes. After analysing customary international law sources and ICTY precedent, the

Court held that passive continued involvement in the relevant organisation is not enough:

Common to all these expositions is that there should be a participation

that went beyond mere passivity or continued involvement in the

organisation after acquiring knowledge of the war crimes or crimes

against humanity.19

21. Such reasoning lends support to Trial Chamber’s conclusion in this case that

another reasonable inference, besides JCE I intent, was available on the facts.

22. A finding that foreseeability + inaction = intent not only undermines the intent

requirement under JCE I, but swallows up JCE III liability. Every foreseeable crime

eventually would become intended. This would reduce intentionality “to the most

innocuous sense of the word to mean actions that are done voluntarily or without

compulsion”.20

23. Had the Trial Chamber wanted to frame President Karadzic’s approach to the

common purpose as a “willingness” to pursue it against the backdrop of the Excluded

Crimes, it would have done so. Instead, the evidence did not exclude that President

Karadzic “did not care enough to stop pursuing the common plan”.21 That this choice of

language was deliberate, and not accidental, is borne out by its consonance with the Trial

17 Id. 18 J. Hall, General Principles of Criminal Law, (2nd ed.) (The Lawbook Exchange, Ltd 1960), p.78: “if

anyone does anything unintentionally, the case is entirely different from that of one who acts deliberately”; p.

82: “The consent of the will is that which renders human acts either commendable or culpable.” 19 Regina (JS (Sri Lanka)) v Secretary of State for the Home Department, [2010] UKSC 15. 20 J.D. Ohlin, Joint Intentions to Commit International Crimes, 11 Chi. J. Int’l L. 693 (2011), p. 707. 21 Judgement, para. 3466.

No. MICT-13-55-A 9

Chamber’s finding that it was not the only reasonable inference that the Excluded Crimes

were included in the common plan.

24. This language also reflects the Trial Chamber’s earlier conclusions that President

Karadzic planned to take over power without any “genuine concern about the manner in

which power was taken.”22 The Trial Chamber consistently found that the evidence

reflected, rather than intent, ambivalence towards the means of achieving the agreed plans.

25. In any event, even accepting the Prosecution’s “reformulation”, the Trial

Chamber performed the assessment that the Prosecution says it failed to conduct. The Trial

Chamber was explicit that in coming to its conclusion, it considered that President

Karadzic “received information” about the Excluded Crimes and “continued to act in

furtherance of the common plan.”23

26. The Trial Chamber had regard to the legal standard whereby knowledge of crimes

and continued participation in the common plan may be a sufficient basis from which to

infer intent. But knowledge and continued participation, even if present, are insufficient

basis to automatically find intent. When intent is inferred in this manner, “it must be the

only reasonable inference”.24 Even when the accused’s knowledge and continued

participation might suggest that he shared the intent to further the common purpose, it

“does not necessarily compel such a conclusion” if another reasonable inference is

available.25

27. In this case, another reasonable inference was available. The Trial Chamber

committed no legal error in identifying it as such.

28. The Prosecution correctly states the relevant question for JCE I liability as

whether JCE members’ shared state of mind was that the crimes “should be carried out” to

achieve the shared objective.26 The Trial Chamber did not think that the evidence allowed

for only that conclusion. Thinking that something “should” happen, is very different from

not caring either way if it occurs. In the Trial Chamber’s view, the evidence did not

exclude this ambivalence towards the Excluded Crimes. The Prosecution has not

22 Id, paras. 3084, 3436. 23 Id, para. 3466. 24 Popovic AJ, para. 1369; Sainovic et al. AJ, para. 995; Krajisnik AJ, para. 202; Brdjanin AJ, para. 429;

Vasiljevic AJ, para. 120. 25 Blagojevic AJ, paras. 272-73. 26 Prosecution Appeal Brief, para. 17.

No. MICT-13-55-A 10

demonstrated that this conclusion was unwarranted, let alone that it was a finding that no

reasonable Trial Chamber could draw.

B. The finding that the Excluded Crimes did not form part of the JCE was

reasonable

29. The Prosecution’s submissions on the alleged error of fact, in essence, re-package

the Trial Chamber’s adverse factual findings, and then urge the Appeals Chamber not only

to draw a different inference, but to find that it was the only inference reasonably available.

30. The Prosecution asserts that it is “untenable” that a Trial Chamber could find that

the Excluded Crimes were a foreseeable consequence of the JCE, rather than a part of it. 27

Bearing in mind the burden on the Prosecution to show that “all reasonable doubt of the

accused’s guilt has been eliminated” when appealing an acquittal, 28 the Prosecution - from

the outset - has set itself a momentous task. For the reasons set out below, it was unable to

meet it.

1. The Trial Chamber never found that President Karadzic knew the

Excluded Crimes were necessary to achieve the common criminal

purpose

31. At the heart of the Prosecution arguments is a finding that does not exist.

32. According to the Prosecution, no reasonable Trial Chamber could have found that

President Karadzic did not intend the Excluded Crimes, given its finding that he and the

other JCE members “knew that violence was necessary to achieve” the common criminal

purpose.29 This is not correct.

33. At no point in the Judgement did the Trial Chamber find that President Karadzic

knew that the Excluded Crimes were a necessary or integral component of the JCE. And

while the Prosecution repeats this assertion throughout its submissions, it never cites to a

passage in the judgement where this finding exists.

27 Id, para. 19. 28 Popovic AJ, paras. 21, 1398. 29 Prosecution Appeal Brief, paras. 18, 20, 21, 24, 32, 43, 45.

No. MICT-13-55-A 11

34. In reality, after an assessment of the evidence, the Trial Chamber concluded that

it was convinced beyond reasonable doubt that it was foreseeable to President Karadzic

that Serb Forces might commit the Excluded Crimes while executing the common plan.30

35. The other findings to which the Prosecution points are not inconsistent with JCE

III liability, nor do they make the conviction on this basis unreasonable. The findings that

JCE members were “prepared to use force and violence” to achieve their objective,31 or

knew that “a potential conflict would be extremely violent”,32 do not equate to the idea that

President Karadzic knew that the Excluded Crimes were necessary to achieve the common

objective. Awareness that a potential conflict in this region would be extremely violent (a

view shared by others in the international community at the time) is not the same as

knowing that forcible transfer and deportation would necessarily result in the Excluded

Crimes. Moreover, being “prepared” to do something necessarily denotes uncertainty if it

will be necessary to actually do it.

36. A finding elsewhere in the Judgement that JCE members were “aware and put on

notice that the objective of ethnic separation would result in violence”,33 is the kind of

finding which supports the conclusion that the crimes were “foreseeable” giving rise to

JCE III liability. It is not a finding that compelled the conclusion that JCE members

possessed the requisite intent for murder, extermination, or persecution through rape,

torture, or sexual violence. The Prosecution’s pivotal reliance on a finding that the Trial

Chamber never reached undermines its assertion of a factual error.

2. President Karadzic’s “most important role” does not make his

conviction for the Excluded Crimes through JCE III unreasonable

37. The Trial Chamber had full regard of President Karadzic’s role in carrying out the

JCE. The Prosecution points to no evidence that was overlooked, nor challenges the Trial

Chamber’s conclusions. Repeating and re-packaging the Trial Chamber’s own findings is

insufficient to demonstrate an error in its conclusion.

30 Judgement, paras. 3521-24. 31 Prosecution Appeal Brief, para. 24. 32 Id, para. 22. 33 Id, paras. 23, 26.

No. MICT-13-55-A 12

38. The Prosecution characterises the conflict in BiH as “resulting” from carrying out

the common purpose.34 The Trial Chamber never held that President Karadzic’s

implementing the common purpose “resulted in” the conflict. A general finding that

President Karadzic was aware that a “potential conflict” would be violent35 is not the same

as a specific finding of awareness that forcible transfer and deportations would necessarily

result in the Excluded Crimes, let alone intent for them to occur.

39. For a conviction under the JCE’s first category, the accused must share both the

intent to commit the crimes that form part of the JCE’s common purpose, and the intent to

participate in a common plan aimed at their commission.36

40. The Prosecution fails to specify the Trial Chamber’s factual findings that support

the requisite mens rea for each type of Excluded Crime. The Prosecution’s analysis is

limited to repeating general findings about an awareness of “violence” from the

Judgement’s other sections.

41. This is insufficient. Awareness that the common criminal plan “would result in

violence”37 does not equate to intent for each Excluded Crime for which a blanket

“reclassification” is now sought.

42. A general knowledge by an accused that violence will occur is insufficient to

establish his intent to exterminate, for example, which requires a finding that the accused

“had the intention to kill persons on a massive scale”;38 that he intended “the annihilation

of a mass of people”.39 Nor does an awareness that violence will occur equate to specific

intent for persecution through torture, or persecution through rape, or sexual violence.40

43. As such, the Trial Chamber’s findings are insufficient to allow the Appeals

Chamber to “reclassify” these crimes in a blanket manner by lifting them en masse from

JCE III and inserting them into JCE I. The Prosecution would have first needed to

34 Id, para. 26: “[…] he deliberately triggered the implementation of the common purpose while envisaging

the use of force and violence, “fully aware” that the resulting conflict “would be extremely violent and result

in thousands of deaths […].” 35 Judgement, para. 2708. 36 Popovic AJ, para. 1369. 37 Prosecution Appeal Brief, paras. 23, 26. 38 Brdjanin TJ, para. 395. 39 Stakic TJ, para. 638. 40 Kvocka AJ, para. 110.

No. MICT-13-55-A 13

identify the requisite mens rea findings for each crime that it sought to reclassify. This

was an impossible task. The findings do not exist.

3. The concurrent occurrence of the Excluded Crimes does not require a

finding that they were part of the JCE

44. That the Excluded Crimes were systematic, organised, or even at the “core” of the

forcible transfer and deportation does not mean that the JCE members intended them.41

45. The manner that ultimate perpetrators later carry out the common criminal

purpose does not serve to post facto alter the JCE members’ mens rea at the time the

common criminal purpose came into being.

46. It could be the case that on every occasion agreed Crime A is committed, Crime

B also occurs. This does not mean that a reasonable Trial Chamber must find that Crime B

was also part of the common criminal purpose. But it might support a finding that Crime B

was foreseeable.

47. The Trial Chamber was well aware that the Excluded Crimes existed, the scope

of their occurrence, and the manner in which they were carried out.42 Yet it was not

convinced that their inclusion in the common plan was the only reasonable inference

available. This was a legitimate and reasonable finding on the entirety of the evidence. The

Prosecution’s disagreement with the Trial Chamber’s conclusion does not demonstrate a

factual error occasioning a miscarriage of justice.

4. The Trial Chamber took into account President Karadzic’s reaction to

the Excluded Crimes

48. In its concluding paragraph on President Karadzic’s JCE I intent, the Trial

Chamber noted that it considered “that the Accused received information about the

perpetration of crimes committed by Serb Forces against non-Serbs throughout the

conflict, [including killings] […] and continued to act in furtherance of the common

plan.”43 President Karadzic’s reaction to information concerning the Excluded Crimes was

at the forefront of the Trial Chamber’s mind when it found that another reasonable

inference which differs from the one on which the Prosecution now insists.

41 Prosecution Appeal Brief, paras. 30-32. 42 Judgement, paras. 3441-45, 3465. 43 Id, para. 3466.

No. MICT-13-55-A 14

49. Denying the Excluded Crimes’ existence and failure to punish them is consistent

with the alternative inference that President Karadzic’s was ambivalent towards them.44 It

does not make the Trial Chamber’s conclusion unreasonable.

5. President Karadzic’s “steadfast” pursuit of the common purpose does

not equate to intent to commit crimes that fell outside it

50. A JCE’s temporal span does not determine its scope. Even an unwavering and

long-term commitment to a common plan does not establish intent for crimes that fell

outside it.45 No principle or practice links the common purpose’s duration to the likelihood

of it expanding to embrace other crimes.

51. In any event, as discussed above, the findings necessary to support an expanded

JCE are missing. The Prosecution points to no finding, for example, on the critical

agreement by JCE members to “expand” the common criminal purpose in the manner now

alleged.46 The Trial Chamber was reasonable in identifying another available inference.

The Prosecution has not demonstrated any error in the Trial Chamber’s approach.

6. The Trial Chamber’s findings regarding the other JCE members suffer

from the same flaws

52. Asserting that the other JCE members were prepared to use violence to carry out

the common purpose, or were aware that ethnic separation would result in violence,47 does

not make the Trial Chamber’s finding of an alternative inference unreasonable. Neither

awareness nor preparedness equates to intent, much less a shared criminal intent by all

those who take part in the common enterprise.48

53. The JCE members’ acts repeated by the Prosecution were considered by the Trial

Chamber in concluding the Excluded Crimes might be committed when carrying out the

common criminal purpose. These findings were not ignored, nor were they ascribed

insufficient weight; rather, they formed the basis of a conviction under JCE III.49 The

44 Judgement, para. 3466. 45 Prosecution Appeal Brief, para. 43. 46 Krajisnik AJ, paras. 163, 175. 47 Prosecution Appeal Brief, para. 44. 48 See, e.g. A. Casesse, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal

Enterprise”, 5 JICJ 109 (2007), p. 126. 49 Judgement, paras. 3521-23.

No. MICT-13-55-A 15

Prosecution disagrees with that conclusion. This is insufficient to warrant appellate

intervention.

7. Concluding that the Excluded Crimes fell outside the JCE reflected the

Trial Chamber’s findings and the purpose of JCE liability

54. At the heart of JCE I liability is the participants’ shared intent to commit the

agreed crime. This shared intent for a particular criminal purpose is the key to criminal

culpability.50

55. Recognising that in the chaos and turmoil of conflict, an agreed criminal purpose

is unlikely to rest within its intended bounds, the expanded form of JCE liability exists to

criminalise conduct that was a foreseeable consequences of the original criminal enterprise.

Although the JCE members did not intend these additional crimes, their foreseeability is

sufficient for criminal liability.

56. An agreement for a population’s forcible transfer and deportation that results in

additional crimes such as murder, property destruction and sexual violence, is a textbook

example of when JCE I and JCE III liability can arise. Criminal law texts often use forcible

transfer and additional crimes to illustrate the way in which the two forms of liability

interact,51 as have Chambers of the ICTY.52

57. While each case turns on its facts, in the present case, the Trial Chamber found

this is precisely what occurred. While JCE members shared the intent to deport and

forcibly transfer, the additional crimes – inter alia murder, extermination, persecution

through torture and rape – were not included in the common criminal plan, nor intended by

President Karadzic.53

58. The Prosecution fails to show any error in the Trial Chamber’s approach. The

Appeals Chamber should dismiss Ground 1.

50 See, e.g. H. Olasolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to

International Crimes (Hart Publishing Ltd., Oxford 2010), p. 170: “the case law of the ad hoc Tribunals is

clear in requiring that the aim of specifically causing the objective elements of the core crimes of the

enterprise (along with any requisite ulterior intent or dolus specialis required by such crimes) must be shared

by all co-perpetrators.” 51 See, e.g. A. Cassese, International Criminal Law (Oxford University Press, 2013), p. 168; N. Jain,

Perpetrators and Accessories in International Criminal Law: Individual Modes of Responsibility for

Collective Crimes (Bloomsbury Publishing, 2014), p. 63. 52 See, e.g. Tadic AJ, paras. 204; Kordic TJ, para. 396; Vasiljevic AJ, para. 99. 53 Judgement, para. 3466.

No. MICT-13-55-A 16

C. The Prosecution’s arguments have no impact on the Trial Chamber’s

analysis of President Karadzic’s genocidal intent

59. The Trial Chamber did not err when it concluded that finding President Karadzic

intended the Excluded Crimes was not the only reasonable inference. Therefore, its

analysis of genocidal intent in the Municipalities is not affected by Ground 1.54 Nor would

the Excluded Crimes’ “reclassification” as JCE I crimes warrant appellate interference in

the findings on genocidal intent. The threshold for specific intent is rigorous. Convictions

for genocide “can be entered only where that intent has been unequivocally established.”55

It is not sufficient that the perpetrator knew that the underlying crime would inevitably or

likely result in the destruction of the group.56 The destruction, in whole or in part, must be

the aim of the underlying crime(s). 57

60. Thus, even if the JCE’s common criminal purpose was found to encompass

murder, extermination, or cruel or inhumane treatment, this is insufficient to impute

genocidal intent to its members. Suggesting otherwise is a leap unsupported by the law and

the Trial Chamber’s factual findings.

54 Contra, Prosecution Appeal Brief, para. 47. 55 Krstic AJ, para. 134. 56 Blagojevic TJ, para. 656. 57 See, e.g. Stakic TJ, para. 530: “in order to ‘commit’ genocide, the elements of that crime, including the

dolus specialis must be met. The notions of ‘escalation’ to genocide, or genocide as a ‘natural and

foreseeable consequence’ of an enterprise not aimed specifically at genocide are not compatible with the

definition of genocide under Article 4(3)(a).”

No. MICT-13-55-A 17

2. The Actus Reus of Genocide under Article 4(2)(c) was not established

In Brief

The Trial Chamber was not unreasonable in concluding that events in the

detention facilities were not calculated to destroy the Bosnian Muslims as

such, despite its failure to provide a reasoned opinion.

A. The Trial Chamber failed to provide a reasoned opinion

61. President Karadzic agrees that the Trial Chamber failed to provide a reasoned

opinion for its conclusion that:

While the conditions in the detention facilities in the Count 1 Municipalities were

dreadful and had serious effects on the detainees, the Chamber is not convinced that

the evidence before it demonstrates that they ultimately sought the physical

destruction of the Bosnian Muslims and Bosnian Croats.58

62. But when the Appeals Chamber makes its own assessment, it will conclude that a

reasonable trier of fact could have a reasonable doubt that the conditions in the detention

facilities were calculated to destroy the Bosnian Muslims.59

B. Acts Falling under 4(2)(a) and 4(2)(b) may be considered

63. Since the Trial Chamber failed to provide a reasoned opinion, and the Appeals

Chamber will have to make its own assessment, whether the Trial Chamber failed to

consider Article 4(2)(a) and (b) acts as part of the context is moot.

64. President Karadzic agrees that while acts falling under Articles 4(2)(a) and

4(2)(b) cannot also serve as acts under Article 4(2)(c), they may be considered as part of

the context when determining whether conditions of life were calculated to destroy the

group.

58 Judgement, para. 2587. 59 Stanisic and Zupljanin AJ, para. 142 (applying reasonable trier of fact test). President Karadzic refers only

to Bosnian Muslims in this brief because each group must be separately considered (Stakic AJ, para. 28) and

few Bosnian Croats were in the detention facilities.

No. MICT-13-55-A 18

C. Article 4(2)(c) was not violated in the Detention Facilities

1. Scope of Article 4(2)(c)

65. The Prosecution raises the issue of whether the conditions must be calculated to

destroy the group itself or to destroy individual group members. The Prosecution argues

for the latter, contending that Article 4(2)(c) is aimed at capturing inflicting conditions on a

collection of group members calculated to bring about their physical destruction.60

66. Article 4(2)’s plain language, however, suggests that the former interpretation is

the better view. Article 4(2) provides:

Genocide means any of the following acts committed with intent to destroy, in

whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.

(emphasis added)

67. While under (a) and (b), acts against members of the group are specified, the

language of (c) speaks only of the group. If the Prosecution’s interpretation is correct, one

would have expected that (c) would read “deliberately inflicting on members of the group

conditions of life calculated to bring about their physical destruction, in whole or in part.”

Given the extent to which the Genocide Convention’s language was debated, this

difference in terms between (a) and (b) on the one hand, and (c) on the other, must have

been intentional.

68. One can imagine a scenario where conditions of life are calculated to destroy

individual members of the group, but not the group itself. Withholding insulin from

diabetics could create conditions of life designed to destroy those individuals suffering

from diabetes, but not the group itself. Creating conditions of detention that were designed

to destroy the elderly or physically infirm may also not be designed to destroy the group

itself.

60 Prosecution Appeal Brief, para. 71.

No. MICT-13-55-A 19

69. While it makes no difference to the analysis in our case, should the Appeals

Chamber wish to pronounce itself on the issue, the better approach would be to remain

faithful to the words of the drafters of the Genocide Convention.

70. Such an approach is also consistent with the intent behind those words.

71. In the Genocide Convention’s drafting phase, the words “calculated to bring

about its physical destruction” replaced the phrase “aimed at causing death” proposed by

Belgium in the UN General Assembly’s Sixth (Legal) Committee for Article 4(2)(c).61

This supports the notion that destroying the group, rather than the individuals, was what

was intended.

72. During the Ad Hoc Committee on Genocide’s 81st Meeting, while discussing

what became II(c) of the Genocide Convention, one representative restated the view that

“the death of an individual could be considered an act of genocide if it was part of a series

of similar acts aiming at the destruction of the group to which that individual belonged.”62

73. In his commentary on the Genocide Convention, Nehemiah Robinson notes:

The main characteristic of Genocide is its object: the act must be directed

toward the destruction of a group. Groups consist of individuals, and

therefore destructive action must, in the last analysis, be taken against

individuals. However, these individuals are important not per se but only

as members of the group to which they belong.63

74. Professor William Schabas has pointed to a Secretariat note to the Ad Hoc

Committee commenting: “The victim of the crime of genocide is a human group. It is not a

greater or smaller number of individuals who are affected for a particular reason (execution

of hostages) but a group as such.”64

75. Professor Schabas also noted: “The commentary [to the Genocide Convention]

stressed the importance of a narrow definition, so as not to confuse genocide with other

crimes, and to ensure the success of the convention by facilitating ratification by a large

number of States.”65

61 UN Doc. A/C.6/217 (Belgian proposal); UN Doc. A/C.6/SR.82 (Soviet amendment), cited in Stakic TJ,

para. 518. 62 Comment by Mr. Perez Oeronzo (Venezuela), A/C.6/SR.81, TP Vol. 2, p.1479. 63 N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York, 1960), p.

58. 64 W. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge University Press,

2000)(“Schabas”), p. 231. 65 Id, p. 53.

No. MICT-13-55-A 20

76. Therefore, the better interpretation of Article 4(2)(c) is that the conditions must

be calculated to destroy the group itself, rather than individual group members upon whom

they are inflicted.

2. Application of Article 4(2)(c)

77. The Prosecution focuses its argument that no reasonable Trial Chamber could

have concluded that the conditions of life were not calculated to destroy the Bosnian

Muslim group on three detention facilities: Omarska, KP Dom Foca, and Susica Camp.66

Omarska Camp

78. Of the more than 3000 detainees who passed through Omarska between

25 May and 21 August 1992,67 approximately 155 were killed by gunshots or beatings.68

No one is recorded as having died from the deplorable conditions there. If the conditions of

life were calculated to destroy the group, someone miscalculated.

66 Prosecution Appeal Brief, para. 74. 67 Judgement, para. 1749. 68 Id, para. 1768, fn. 6065.

No. MICT-13-55-A 21

79. In the Omarska camp commanders’ prosecution, the Prosecution decided not to

charge any of them with genocide.69 Had the conditions of life there been calculated to

destroy the Bosnian Muslim group, the Prosecution would have charged the camp

commanders under Article 4(2)(c).

KP Dom Foca

80. KP Dom Foca housed about 5-600 detainees at its peak.70 Approximately 200

detainees were killed there between June and December 1992.71 At least one detainee died

due to inadequate medical care,72 and one detainee hanged himself.73 Some detainees were

released on the condition that they report daily to the police or were transferred to other

camps to be exchanged.74 If the conditions of life were calculated to destroy the group,

someone miscalculated.

69 Prosecutor v Kvocka et al, No. IT-98-30/1-T, Amended Indictment (26 October 2000). 70 Judgement, para. 888. 71 Id, para. 911. 72 Id, paras. 895, 903. 73 Id, para. 900. 74 Id, para. 887.

No. MICT-13-55-A 22

81. In the KP Dom Foca camp commanders’ prosecution, the Prosecution decided

not to charge them with genocide.75 Had the conditions of life there been calculated to

destroy the Bosnian Muslim group, the Prosecution would have charged the camp

commanders under Article 4(2)(c).

Susica Camp

82. Approximately 2,000 to 2,500 Bosnian Muslims passed through Susica Camp

between May and September 1992.76 Nine were killed by gunshots or beatings in June and

July 1992,77 and approximately 140 detainees were taken from the camp on 30 September

75 Prosecutor v Krnojelac, No. IT-97-25-I, Third Amended Indictment (25 June 2001); Prosecutor v Racevic

and Todovic, No. IT-97-25/1-PT, Second Joint Amended Indictment (24 March 2006). 76 Judgement, para. 1187. 77 Id, paras. 1203-07.

No. MICT-13-55-A 23

1992 and shot.78 No one died because of the camp conditions. If the conditions of life were

calculated to destroy the group, someone miscalculated.

83. In the Susica camp commander’s prosecution, the Prosecution decided not to

charge him with genocide.79 Were the conditions of life there calculated to destroy the

Bosnian Muslim group, the Prosecution would have charged the camp commander under

Article 4(2)(c).

Keraterm Camp

84. The Prosecution also points to deplorable conditions at other detention

facilities.80 Approximately 4,000 detainees were held at Keraterm throughout its operation

as a camp.81 The Chamber found that at least one detainee died from beatings,82 and at

least 190 Bosnian Muslim men were killed in Room 3 at Keraterm by gunshots on 24-25

78 Id, para. 1213. 79 Prosecutor v Nikolic, No. IT-94-2-PT, Third Amended Indictment (31 October 2003). 80 Prosecution Appeal Brief, para. 75. 81 Judgement, para. 1793. 82 Id, paras. 1805-06.

No. MICT-13-55-A 24

July 1992.83 No one died due to the camp conditions there. In the Keraterm camp

commander and guards’ prosecution, the Trial Chamber acquitted them of genocide at the

end of the Prosecution’s case.84

Trnopolje Camp

85. Of the other detention facilities cited in the Prosecution brief,85 more than 23,000

people had been housed at Trnopolje by the end of September 1992,86 and at least two

detainees were identified as having died due to camp conditions.87

83 Id, para. 1815. 84 Prosecutor v Sikirica et al, No. IT-95-8-T, Judgement on Defence Motions to Acquit (3 September 2001),

para. 75 (“Sikirica Rule 98 bis Decision”). 85 Para 75: Vlasenica SJB, Trnopolje, Karakaj Technical School, Betonirka Garage, Sanski Most SJB,

Prijedor SJB, and Vlasenica prison. 86 Judgement, para. 1851. 87 Id, para. 1827.

No. MICT-13-55-A 25

Karakaj Technical School

86. At Karakaj Technical School, 20 men died the first night from suffocation,

none died from the camp conditions thereafter.88 At the remaining detention facilities, no

one died from the conditions.89

87. The Prosecution chose not to proceed with its appeal under Ground 2 for the

Bratunac football stadium, Karaman’s house, Buk Bijela Worker’s Huts, Livade TO

warehouses, Kljuc SJB Building, Nikola Mackic School, Velagici School, Ljubija football

stadium, Magarica military facility, Celopek Dom Culture, Alhos Factory, Novi Izvor

(Ciglana), Drinjaca Dom Culture, Ekonomija Farm, and Standard Factory.90 Therefore, it

88 Id, para. 1307. 89 Id, para. 1179 (Vlasenica SJB), para. 1747 (Prijedor SJB), para. 1991 (Sanski Most SJB), para. 1998

(Betonirka Garage). 90 Prosecution Appeal Brief, fn. 196.

No. MICT-13-55-A 26

can be concluded that conditions of life at those facilities were not designed to destroy the

Bosnian Muslims.

88. That the Bosnian Serbs maintained many facilities in the Count One

Municipalities which were not designed to create conditions of life designed to destroy the

Bosnian Muslims itself calls into question whether the other facilities were so designed. If

genocide was a means to carry out the JCE’s common purpose, as the Prosecution

contends, why did so many detention facilities fail to employ these means?

89. Another inexplicable feature of the very detention facilities the Prosecution

claimed to have conditions calculated to destroy the group were the vast number of people

who were released from those facilities. 1,773 detainees were transferred from Omarska to

Trnopolje for release or exchange. The remaining detainees were transferred to Manjaca

Prison, where genocide is not alleged to have been committed.91 At other detention

facilities in northwestern Bosnia, the detainees were also transferred to Manjaca.92 Why

would so many Bosnian Muslims be released or transferred to a non-genocide facility if

the conditions were calculated to destroy the group?

Manjaca Prison

91 Judgement, para. 1789. 92 Id, paras. 1381-86, 1534-35, 1543, 1987, 2017.

No. MICT-13-55-A 27

90. It must also be remembered that the facilities in question were set up hastily in

wartime conditions, where shortages of food and medicine prevailed even among the Serb

population.93

91. During debate on Article 4(2)(c) at the Genocide Convention, the representative

for France stated:

…To quote an historical example, the ghetto, where the Jews were confined in

conditions which, either by starvation or by illness accompanied by the absence of

medical care, led to their extinction, must certainly be regarded as an instrument of

genocide. If any group were placed on rations so short as to make it extinction

inevitable, merely because it belonged to a certain nationality, race, or religion, the

fact would also come under the category of genocidal crime.94

92. Given the few deaths due to camp conditions in our case, it cannot be said that

those conditions made the Bosnian Muslims’ extinction inevitable.

93. Considering all of the above, a reasonable Trial Chamber could have had a

reasonable doubt that the conditions of life in the detention facilities were calculated to

destroy the Bosnian Muslims as a group. Indeed, other Trial Chambers and the ICJ have

examined these same conditions and found them not to have met the requirements for

genocide,95 while in the Brdjanin case, the conditions were found to satisfy the actus reus

of genocide, but committed without the intent to destroy the group.96

94. An ICTR Trial Chamber has also declined to find that the actus reus set forth in

Article 4(2)(c) was established where the time period during which the deprivations

occurred were short.97 Likewise, in this case, the short time period in which the temporary

detention facilities operated, and that almost all who died were shot or beaten, militates

against a finding that the Article 4(2)(c) requirements were satisfied.

D. The effect of any error would not require reversal

95. Despite the lack of a reasoned opinion, the Trial Chamber’s conclusion that the

conditions were not calculated to destroy the Bosnian Muslims is, at the very least, a

reasonable inference available on the evidence.

93 See, e.g. P3717, p.86; D1738, p.4; D1928; D4138, paras. 4-6; D4226, para. 6. 94 UN Doc. E/AC.25/SR.4, p. 14 (Ordonneau) (emphasis added). See also Schabas, p. 166. 95 Sikirica Rule 98 bis Decision, para. 75; Stakic TJ, para. 557; Stakic AJ, para. 47; Krajisnik TJ, para. 867;

Bosnia v Serbia, para. 354. 96 Brdjanin TJ, para. 989. 97 Kayishema and Ruzindana TJ, para. 548.

No. MICT-13-55-A 28

96. Should the Appeals Chamber be convinced otherwise, this would not be cause to

disturb President Karadzic’s acquittal for genocide. Because the number of persons

subjected to such conditions under Article 4(2)(c), was small compared to those who were

killed [Article 4(2)(a)] or beaten [Article 4(2)(b)], reclassifying those acts as part of the

actus reus of genocide would have no impact on the Trial Chamber’s overall conclusion

that President Karadzic did not have the intent to destroy the Bosnian Muslims as such.98

98 See Stakic AJ, para. 55; Bosnia v Serbia, para. 334.

No. MICT-13-55-A 29

3. The mens rea for genocide was not established

In Brief

The Trial Chamber’s conclusion on mens rea for genocide was not

unreasonable, and was consistent with long-standing precedent.

A. There was a reasoned opinion concerning Prijedor

97. The Trial Chamber correctly articulated the law on genocidal intent.99 It made

detailed findings on the 1992 events in the Municipalities.100 It expressly considered the

genocidal intent of physical perpetrators, unnamed JCE members, and named JCE

members, including President Karadzic.101 It then went on to consider whether such intent

was the only reasonable inference from the “pattern of crimes” in the Count 1

Municipalities.102

98. The Trial Chamber also expressly considered the Prosecution’s suggestion that

Prijedor was the “core example” of genocidal intent,103 and that “the part of the Bosnian

Muslim and Bosnian Croat groups in each of the Count 1 Municipalities satisfies the

substantiality requirement when considering the numeric size and significance of the

targeted parts, as well as the areas of the perpetrators’ activity and the possible extent of

their reach”.104 Further, the Trial Chamber acknowledged that “Prijedor is taken as the

primary example of the part of the Bosnian Muslim and Bosnian Croat groups that would

meet the substantiality requirement with regard to numeric size and the significance of

targeting these communities, given that Prijedor represented a symbol of “brotherhood and

unity.”105

99 Judgement, paras. 549-55. 100 Id, paras. 596-2438. 101 Id, paras. 2595-2613. 102 Id, paras. 2614-25. 103 Id, para. 2589. 104 Id, para. 2593. 105 Id, para. 2593.

No. MICT-13-55-A 30

99. The Trial Chamber explicitly referenced the arguments at paragraphs 589-94 of

the Prosecution Final Trial Brief, twice, when analysing genocidal intent in the Count 1

Municipalities and Prijedor.106 In light of these direct references, it cannot be said that the

Trial Chamber failed to consider the Prosecution’s arguments.107

100. Further, the Trial Chamber examined the evidence when coming to its conclusion

on genocidal intent, looking at the events in each municipality separately, including

Prijedor,108 to determine if genocidal intent could be inferred from the pattern of acts.

101. The Prosecution’s case was that the JCE was carried out in “municipality after

municipality” through a “coordinated campaign of crimes”. It alleged that “the pattern of

these crimes reflects the organisation, preparation and planning that preceded them, and

reveals the common purpose behind them”.109 The Prosecution contended that “while the

same general pattern of crimes occurred in all of the municipalities charged in Count 1, it

is instructive to focus on one [Prijedor] to illustrate how far removed from ‘mere’ forcible

transfer this was and how clearly the underlying crimes reflect Karadzic’s intent to destroy

the group in part”.110

102. Having recited key factual findings for each Count 1 Municipality (including

Prijedor) separately, the Trial Chamber accepted the Prosecution’s submission that “a clear

pattern” to the crimes across those Municipalities existed.111 But the Trial Chamber was

unable to eliminate the reasonable inference that the intent behind the crimes was

“redistribution – rather than the physical destruction – of the population”.112

103. The Prosecution claims that the Stanisic and Simatovic Appeals Judgement

supports the proposition that the Trial Chamber was obliged to assess separately whether

genocidal intent could be established concerning the Bosnian Muslims and Bosnian Croats

in Prijedor.113 What the Appeals Chamber decided in that case was that the Trial Chamber

erred by failing to “adjudicate whether the elements of the actus reus of JCE liability –

namely, the existence of a common criminal purpose, a plurality of persons, and Stanisic

106 Id, para. 2593, fns. 8701-02. 107 Prosecution Appeal Brief, para. 89. 108 Judgement, paras. 2616-22. 109 Prosecution Final Trial Brief, para. 179, 186 (heading “6. Pattern of crimes”). 110 Id, para. 583. 111 Judgement, para. 2623. 112 Id, para. 2623-25. 113 Prosecution Final Trial Brief, paras. 89-91.

No. MICT-13-55-A 31

and Simatovic’s contribution – were fulfilled” before considering mens rea.114 The

Appeals Chamber stated:

[W]ithout making findings on the existence and scope of the common criminal

purpose shared by a plurality of persons, the Trial Chamber could not assess

Stanisic’s and Simatovic’s words in the context of that purpose and whether their

acts contributed to that purpose and, consequently, it could not properly adjudicate

whether Stanisic’s and Simatovic’s mens rea for JCE liability could be inferred

from the circumstances.115

It was in this context that the Stanisic and Simatovic Appeals Chamber remarked that the

evidence may have established a JCE of a “temporally and/or geographically reduced”

scope against which the Trial Chamber would have to evaluate mens rea.116

104. In the present case, the Trial Chamber made findings on the JCE’s existence and

scope.117 As the Trial Chamber noted, those findings were “intrinsically connected” to the

assessment of JCE members’ genocidal intent.118 Having found in the Prosecution’s favour

that there existed a “broad” Overarching JCE, and in the Prosecution’s favour that a

“pattern” to the crimes in the Count 1 Municipalities also existed, the Trial Chamber did

not err by conducting its analysis in accordance with its actual findings rather than

assessing genocidal intent as against a hypothetical additional “Prijedor JCE”.

105. In the Brdjanin case, the Trial Chamber warned that “narrowing down the scope

of the ‘targeted part’ to the relevant ARK municipalities could have a distorting effect, in

more ways than one”.119 Aside from distinctiveness and substantiality issues, the Trial

Chamber noted that the Prosecution’s submission was that any genocidal intent extended

to the Bosnian Muslims and the Bosnian Croats of the ARK as a whole rather than to

individual municipalities. The same risk of distortion arises here.120

106. In reality, the Prosecution never put its case on the basis that, if genocidal intent

could not be inferred from the pattern of crimes in the seven municipalities, the Trial

Chamber should conduct a separate municipality-by-municipality analysis. While the

114 Stanisic and Simatovic AJ, para. 79. 115 Id, para. 82. 116 Id, para. 86. 117 See e.g. Judgement, para. 3515. 118 Judgement, para. 2592. 119 Brdjanin TJ, para. 966. 120 See further Krstic AJ, paras. 12-13: “[T]he area of the perpetrators’ activity and control, as well as the

possible extent of their reach should be considered.”

No. MICT-13-55-A 32

Prosecution emphasises headings and statements in its Final Trial Brief that refer, for

example, to intent to destroy the Bosnian Muslims and Bosnian Croats “in each of the

seven identified municipalities”,121 the real thrust of its case was that the relevant

communities in the Count 1 Municipalities were “simultaneously targeted for destruction”

with a “compounding” effect.122 This makes sense – if genocidal intent could not be

established through the cumulative evidence of a clear and consistent pattern of crimes

across seven municipalities, it is unlikely that such a conclusion would be reached by

isolating the evidence of one municipality.

107. While the Prosecution suggests that it emphasised the “strength of its case” in

Prijedor,123 separately analysing the pattern of crimes in Prijedor would not have produced

a different conclusion for the following reasons:

108. First, in assessing the “pattern of crimes”, the Trial Chamber recalled its earlier

detailed findings about Prijedor (spanning some 344 paragraphs) without any suggestion

that the evidence diverged in any significant manner from the other Count 1

Municipalities.124

109. Second, the pattern of crimes in Prijedor has already been assessed by ICTY Trial

Chambers and the ICJ, which found that genocidal intent was not established. In Stakic, the

Trial Chamber analysed the “comprehensive pattern of atrocities against Muslims in

Prijedor municipality in 1992”.125 Dr Stakic was charged with genocide on the basis that he

acted in concert with several individuals, including President Karadzic.126 In that case, the

Trial Chamber acknowledged that genocidal intent can be inferred from a “pattern of

purposeful action”127 but was unable to find that Dr Stakic, or anyone else, possessed

genocidal intent.128

110. As demonstrated below, the evidence in the case against President Karadzic for

Prijedor went no further than that presented in earlier cases, where this Tribunal has not

121 See references in Prosecution Appeal Brief, fn. 347. 122 Prosecution Final Trial Brief, para 589. 123 Prosecution Final Trial Brief, para. 91. 124 Judgement paras 1569-1913, 2620. 125 Stakic TJ, para. 546. 126 Id, para. 547. 127 Id, para. 526. 128 Id, paras. 560-61. The Appeals Chamber dismissed the Prosecution’s appeal of these aspects of the Trial

Chamber’s decision: Stakic AJ, paras. 37-57.

No. MICT-13-55-A 33

found genocidal intent.129 Genocide charges were not pressed against the Omarska camp

commanders,130 and genocide charges against the Keraterm Camp commanders were

dismissed.131

111. Third, no direct evidence exists that a different fate was intended for Prijedor as

compared to the other Count 1 Municipalities. For example, while the Prosecution in its

Final Trial Brief stressed President Karadzic’s remark that “a green stain” had appeared in

Prijedor,132 that remark applied to a wider area:

In that regard, you can understand now why a green, a green stain has appeared

here. Another German, actually an Austrian VALDHEIM had carried out genocide

here. Here, for instance, in Sanski Most over 5,300 Serbs were killed, murdered

and slaughtered in one day. In this area here, in Bosanska Krupa even, and Bihac

county we were absolutely the majority of the population in this area; more than

two thirds. […] 133

112. Moreover, while the Prosecution emphasised that Prijedor had “strategic

significance”, it did so by claiming that “Prijedor, Sanski Most and Kljuc” attracted the

same significance as Vlasenica, Bratunac and Zvornik, citing “the strategic objectives as

articulated at the 16th Assembly”.134 Those strategic objectives have been analysed by both

this Tribunal and the ICJ and found not to manifest genocidal intent.135

113. While the Prosecution described Prijedor as a symbol of “brotherhood and unity”,

the evidence it cited in support were two extracts from testimony given by witnesses in

previous cases with significant ties to Prijedor.136 No evidence exists that President

Karadzic himself or any JCE members sought to single out Prijedor.

114. The arguments outlined above on genocidal intent in the Municipalities

demonstrate that the Trial Chamber; (i) analyzed the relevant legal principles and evidence

in the case, (ii) made detailed findings which explain its basis for acquitting the accused,

(iii) provided reasoning that enable the parties to exercise their appellate rights, and (iv)

129 See sub-ground 3(D) below. See also 98bis Appeal Response Brief, paras 141-69. 130 Prosecutor v Kvocka et al, No. IT-98-30/1-T, Amended Indictment (26 October 2000). 131 Sikirica Rule 98 bis Decision, paras. 90-97. 132 Prosecution Final Trial Brief, para. 33 (citing P6134). 133 P6134. 134 Prosecution Final Trial Brief, para. 590. 135 See e.g. Stakic TJ, paras. 548, 560; Bosnia v Serbia, paras. 237, 372 (noting ICTY jurisprudence);

Brdjanin TJ, paras. 75, 981-82. 136 Prosecution Final Trial Brief, para. 593 citing P3703 and [REDACTED].

No. MICT-13-55-A 34

made findings that the Appeals Chamber is able to understand and review alongside the

Trial Chamber’s evaluation of the evidence.137

115. A Trial Chamber need not refer to the testimony of every witness or every piece

of evidence on the trial record, absent an indication that the Trial Chamber disregarded any

particular piece of evidence.138 The Trial Chamber met and exceeded this standard.

B. Permanent removal did not preclude genocidal intent

116. Contrary to the Prosecution’s claims, the Trial Chamber never found that

genocidal intent was precluded because of the permanent removal objective.

117. The Trial Chamber acknowledged that genocide was charged as a means of

achieving the permanent removal of the Bosnian Muslims and Bosnian Croats from the

Count 1 Municipalities139 and expressly recognised that the objective of forcible removal

may coexist with genocidal intent. For example, in analysing speeches and statements

made by President Karadzic and JCE members, the Trial Chamber stated that it was not

satisfied that “the evidence which demonstrates this objective [forcible removal] also

shows an intent to physically destroy”.140

118. In other words, the Trial Chamber accepted that genocidal intent may accompany

an objective of permanent removal, but found that the evidence did not establish intent to

destroy the Bosnian Muslims and/or Bosnian Croats in the Count 1 Municipalities as such.

One scholar has noted that the similar use of the adverb “also” in another case “is

revealing”, as it reflects an acknowledgement that genocidal intent may coexist with an

agenda of forcible removal.141

119. The same approach is seen later in the Judgement, where the Trial Chamber

emphasised that President Karadzic and other JCE members’ statements, speeches and acts

were consistent with the objective of ethnic separation “[h]owever, the Chamber is not

satisfied that this evidence […] allows the Chamber to conclude that the Accused or the

named members of the alleged Overarching JCE had genocidal intent”.142 In other words,

137 Krajisnik AJ, para. 139; Haradinaj AJ, para. 128; Kunarac AJ, para. 41; Limaj AJ para. 81. 138 Perisic AJ, para. 92 (citing Limaj AJ, para. 86); Kvocka AJ, para 23; Haradinaj AJ, para 129. 139 Judgement, para. 592. 140 Id, para. 2596 (emphasis added). 141 P. Behrens, “Genocide and the Question of Motives” 10 JICJ 501(2012), p. 514 (“Behrens”). 142 Judgement, para. 2605.

No. MICT-13-55-A 35

the objective of forcible removal did not preclude finding genocidal intent; instead, the

Trial Chamber considered that despite that objective, it could not be satisfied that the only

reasonable inference was that genocidal intent was also present.

120. In assessing the pattern of crimes in the Count 1 Municipalities, the Trial

Chamber never concluded that the objective of removal “precluded” it from finding

genocidal intent. Instead, considering the control that the Bosnian Serb forces held over the

Count 1 Municipalities together with the low numbers of Bosnian Muslims or Bosnian

Croats allegedly targeted for destruction by acts falling within Article 4(2), the Trial

Chamber was unable to find genocidal intent.143 Rather, the “results on the ground” were

consistent with a more limited intent that did not extend to removal by destroying the

Bosnian Muslim or Bosnian Croat groups in part as such.144

121. While the Prosecution stresses that genocide may be “a means to achieve”

permanent removal,145 in the present case the evidence did not support a finding that

genocide was deployed for such a purpose, or that this was the intent of the JCE or

President Karadzic. Rather, the evidence in the case against President Karadzic was similar

to Brdjanin, where the Trial Chamber emphasised that, although genocide “has at times

been referred to as the last resort of the frustrated ‘ethnic cleanser’”, no evidence of

escalation into genocide in the ARK existed, but rather the Bosnian Serb leadership “was

able to assert control over the territory with relative ease, after which it embarked on a

campaign of massive displacement”.146 In that case, like this one, the Trial Chamber held

that the “significant difference in numbers between those forcibly displaced from the ARK

and those subjected to acts envisaged in Article 4(2)(a) to (c)” combined with the Bosnian

Serb forces’ capacity to carry out destruction pointed against genocidal intent.147

122. The same reasoning is reflected in the ICJ’s decision in Croatia v Serbia, where

the Court considered that the small number of victims of genocidal acts as compared to the

size of the targeted part of the group indicated that the JNA and Serb Forces had not

143 Id, para. 2624. 144 Id, para. 2625. 145 Prosecution Appeal Brief, para. 118. 146 Brdjanin TJ, para. 982. 147 Id, paras. 977-78.

No. MICT-13-55-A 36

“availed themselves of opportunities to destroy that part of the group”, a factor indicating a

lack of genocidal intent.148

123. Similarly, in Stakic, the Trial Chamber, having found that the objective or goal

was to establish a “Serbian municipality”, was unable to make a finding of genocidal intent

due to the low number of relevant acts within Article 4(2) as compared to the opportunity

that was available to JCE members.149

124. In Sikirica, the Trial Chamber held that “the fact that the evidence does not

establish that a substantial number of Bosnian Muslims or Bosnian Croats were victims

within the terms of Article 4 (2)(a), (b) and (c) of the Statute”, while not necessarily

negating an inference of genocidal intent, assisted it in finding that such intent could not be

inferred.150

125. The Prosecution’s suggestion that Trial Chamber “blurred the distinction between

intent and objective by concluding that the permanent removal objective was a “reasonable

inference” inconsistent with genocidal intent”151 is unfounded. First, neither in the

paragraph the Prosecution cited152 nor indeed anywhere else, did the Trial Chamber state

that it found that permanent removal was inconsistent with genocidal intent.

126. Further, the framework in which the Trial Chamber considered the genocide

charges in the Municipalities was one in which the Prosecution sought an inference for a

“pattern of crimes.”153 This is, thus, a situation characterised by the absence of a general

plan that can be demonstrated to exist154 from which the Prosecution invites an inference to

be drawn. This stands in sharp contrast to, for example, the factual matrix at the

Nuremberg Tribunals where, although the specific crime of genocide was not yet created,

the IMT charges focused on a clear organized scheme demonstrated through the “planned

and systematic character of the Jewish persecutions”155 and the development of the “plan

for exterminating the Jews”.156

148 Croatia v Serbia, para. 437. 149 Stakic TJ, para. 553. 150 Sikirica Rule 98 bis Decision, para. 75. 151 Prosecution Appeal Brief, para. 98. 152 Judgement, para. 2624. 153 Id, para. 2625. 154 See Bosnia v Serbia, paras. 373-74. 155 IMT Judgement, Vol. 22, pp. 493-94. 156 Id, p. 493.

No. MICT-13-55-A 37

127. In the Justice Case, such an objective was exposed by means of “a plan for the

persecution and extermination of Jews and Poles”.157 The RuSHA Case was similarly

characterised by “a systematic program of genocide.”158 But nothing in Ground 3(B) of the

present case shows that the Trial Chamber was presented with evidence, either as part of a

plan or in the absence of it, from which the only reasonable inference available on the facts

presented, was that destroying the Bosnian Muslim group was intended.

128. This jurisprudence demonstrates that: (1) as the Prosecution asserts, the objective

of permanent removal can be compatible with genocidal intent; but also (2) that genocidal

intent must be established as the only reasonable inference to be drawn from the whole of

the factual matrix.

129. The latter point is exemplified in the Stakic case, where the Appeals Chamber

held that the Trial Chamber did not conflate motive and intent, but rather found insufficient

evidence of genocidal intent.159 The Appeals Chamber in Stakic concluded that:

The evidence could reasonably be seen as consistent with the conclusion the Trial

Chamber did draw: that the accused merely intended to displace, but not to destroy,

the Bosnian Muslim group. To be sure, he was willing to employ means to this end

that ensured that some members of the group would be killed and others brutalised,

and this was surely criminal – but not necessarily genocidal, absent evidence

proving beyond a reasonable doubt that he sought the destruction of the group as

such.160

130. The Prosecution in the present case alleges that by using the two phrases “intent

behind those crimes” and “intent to create ethnically pure territories”,161 the Trial Chamber

conflated the Bosnian Serb leadership’s objective with intent and failed to grapple with

whether genocide was used as a means to further the objective of permanent removal.162

But putting those phrases back into context, what the Trial Chamber considered was that

the scale of acts that fell within Article 4(2), as compared to the scale of forcible

displacement, gave rise to an inference of no intent to destroy the Bosnian Muslims and/or

Bosnian Croats from the Count 1 Municipalities.

157 “Justice Case”, Vol. 3, p. 1063. 158 “RuSHA Case” Vols. 4-5, p. 609. 159 Stakic AJ, para. 45. See also Krnojelac AJ, para.103. 160 Stakic AJ, para. 56. 161 Judgement, para. 2625. 162 Prosecution Appeal Brief, paras. 99-100.

No. MICT-13-55-A 38

131. The Trial Chamber never built a “dichotomy” between redistribution and

destruction as the Prosecution alleged,163 but simply recognised that in every case, it is

necessary to establish intent to destroy the relevant group or part of the group. As the

Appeals Chamber emphasised in Stakic in the extract above, using violence and killings to

achieve part of a group’s displacement may not be sufficient to establish beyond a

reasonable doubt that destroying part of the group as such is intended.164

132. Similarly, the Trial Chamber never implied that Krajisnik and President

Karadzic’s remarks about Foca “were inconsistent with genocidal intent”, as the

Prosecution alleged.165 Rather, the statements are examples of evidence that never rose to

the threshold of establishing intent to destroy the parts of the groups in the Count 1

Municipalities.

133. Thus, the Trial Chamber never found that genocidal intent was precluded due to

the objective of permanent removal. Instead, it was unable to conclude that genocidal

intent was the only reasonable inference to be drawn, especially considering the low

numbers of Bosnian Muslims or Bosnian Croats allegedly targeted for destruction by acts

falling within Article 4(2) as compared to the opportunity available to the Bosnian Serb

forces.

C. The concept of “destruction” was not limited

134. The Trial Chamber never limited its focus to “intent to physically destroy most

group members” as the Prosecution alleged, but considered whether “all of the evidence,

taken together” established genocidal intent.166 The Trial Chamber considered the evidence

in a “holistic and contextualised” manner, taking account of “the evidence as a whole” in

determining whether it could find genocidal intent.167

135. The Prosecution’s claim that the Trial Chamber conceived of genocidal intent as

the intention to physically destroy “most group members” or “a large proportion” of group

members misconstrues the Judgement.168 Instead, the Trial Chamber correctly recalled that

163 Id, para. 100. 164 Stakic AJ, para. 56. 165 Prosecution Appeal Brief, para 101. 166 Judgement, para. 550. 167 Id, para. 2592. 168 Prosecution Appeal Brief, paras. 103-04.

No. MICT-13-55-A 39

although no minimum number of acts within Article 4(2) is required for the actus reus of

genocide to be established, the “scale” of such acts is a relevant factor in assessing whether

genocidal intent can be inferred.169

136. In Brdjanin, the Trial Chamber held that “the scale of the acts enumerated in

Article 4(2)(a) to (c) does not allow the Trial Chamber to legitimately come to the

conclusion in favour of the existence of genocidal intent”.170 In the Kayishema and

Ruzindana case at the ICTR, it was noted that in the Report of the Sub-Commission on

Genocide, the Special Rapporteur stated that “the relative proportionate scale of the actual

or attempted destruction of a group, by any act listed in Articles II and III of the Genocide

Convention, is strong evidence to prove the necessary intent to destroy a group in whole or

in part.”171 And in Krstic, the Appeals Chamber noted the “scale of the killing” at

Srebrenica was an indicator of genocidal intent;172 the massacre of about one fifth of the

Bosnian Muslim population was the “main evidence underlying the Trial Chamber’s

conclusion” in the absence of direct evidence.173

137. Thus, in the Municipalities, the low proportions of the groups of Bosnian

Muslims and Bosnian Croats allegedly targeted by acts under Article 4(2) was a relevant

factor that the Trial Chamber was entitled to consider.174 Considering this factor does not

mean that the Trial Chamber conceived of genocidal intent as intent to physical destroy

most group members. As in Stakic, considering the low number of underlying acts did not

represent error on the part of the Trial Chamber, but rather was evidence that genocidal

intent was lacking because “more Bosnian Muslims could have been killed, but were

not”.175

138. Similarly, the Trial Chamber did not, as the Prosecution alleged, focus on

underlying acts falling within Article 4(2) to the exclusion of other culpable conduct.176

For forcible transfers, the Trial Chamber correctly recognised that forcible transfers are “a

relevant consideration as part of the Chamber’s overall factual assessment” in determining

169 Judgement, para. 542, fn. 1723. 170 Brdjanin TJ, para. 978. 171 Kayishema TJ, para. 93. 172 Krstic AJ, para. 35. 173 Id, para. 26. 174 Judgement, para. 2624. 175 Stakic AJ, para. 42. 176 Prosecution Appeal Brief, para. 104.

No. MICT-13-55-A 40

whether genocidal intent has been established.177 But, as the ICJ emphasised in Bosnia v

Serbia, while relevant, forcible transfers are not genocidal acts per se. A proposal to

include measures intended to oblige members of a group to abandon their homes as a type

of genocidal act was rejected during the Genocide Convention’s drafting process.178 Thus,

although the Prosecution stresses that transfers of children to another group may be

genocidal conduct under Article 4(2)(e), being conduct that allows “for the continued

physical and biological existence” of individuals,179 it must equally be emphasised that

forcible transfers are not genocidal acts per se and should not be elevated as such.

139. The Prosecution also emphasises the Appeals Chamber’s decision in Krstic to

support the proposition that conduct “that impedes the long-term ability of the group to

reconstitute itself” reflects genocidal intent.180 But the remarks in Krstic must be assessed

against the unique context of Srebrenica. The VRS Main Staff was “constrained” by the

international focus on Srebrenica and presence of UN troops in the area,181 and the killing

of the men would in any event have “severe procreative implications […] potentially

consigning the community to extinction”.182 In those circumstances, the forcible removal

of Bosnian Muslim women and children could support a finding of genocidal intent in

Srebrenica, even though their removal rather than massacre could leave destruction

“incomplete” and be ineffective or inefficient.183 By contrast, in the Municipalities, where

the conduct took place during an eight-month period, it is not suggested that part of the

populations was forcibly removed rather than subjected to acts falling within Article 4(2)

due to such constraints.

140. As the Appeals Chamber in Blagojevic and Jokic made clear, forcible transfers

are “simply a relevant consideration as part of the overall factual assessment” and “simply

assist in placing [underlying acts] in their proper context”.184 They are contextual factors,

177 Judgement, para. 553, fn. 1758 (citing Krstic AJ, paras. 33, 133; Blagojevic AJ, para. 123; Bosnia v

Serbia, para. 190). 178 Bosnia v Serbia, para 190. 179 Prosecution Appeal Brief, paras. 105-08. 180 Id, para. 111. 181 Krstic AJ, para 32. 182 Id, para 28. 183 Krstic AJ, paras. 32-33. 184 Blagojevic AJ, para. 123; J. Clark, “Elucidating the Dolus Specialis: An Analysis of ICTY Jurisprudence

on Genocidal Intent”, 26 Crim. L. Forum 497 (2015), p. 512 (“Clark”).

No. MICT-13-55-A 41

and should not be erroneously elevated to underlying acts.185 As emphasised by one

scholar, it would be “deeply problematic” to “view the actus reus of one crime [forcible

transfer] as furnishing the mens rea of another”, as this would create “a disconnect between

the actus reus and mens rea of genocide, in the sense that the actus reus of forcible transfer

becomes an ‘imposter’ actus reus artificially linked to the mens rea of genocide”.186

141. The ICJ’s decision in Bosnia v Serbia supports this view. First, the difference

between intent to deport a group and genocidal intent was emphasized:

Neither the intent, as a matter of policy, to render an area “ethnically homogenous”,

nor the operations that may be carried out to implement such policy, can as such be

designated as genocide (…) deportation or displacement of the members of a

group, even if effected by force, is not necessarily equivalent to destruction of that

group, nor is such destruction and automatic consequence of displacement.187

142. Second, the ICJ made specific reference to “statements in the Assembly by

President Karadzic”188 and noted that, even considering the interpretation most favourable

to the Applicants in that case, his statements did “not necessarily involve the intent to

destroy in whole or in part the Muslim population in the enclaves.”189 The ICJ also

concluded that, “an essential motive of much of the Bosnian Serb leadership – to create a

larger Serb State […] did not necessarily require the destruction of the Bosnian Muslims

and other communities, but their expulsion” and went on to state that “it is significant that

in cases in which the Prosecutor has put the Strategic Goals in issue, the ICTY has not

characterized them as genocidal”.190

143. Third, the ICJ evaluated whether the pattern of crimes committed against Bosnian

Muslims and Croats demonstrates specific intent to destroy the group in whole or in part.

The ICJ concluded that such intent:

[…] has to be convincingly shown by reference to particular circumstances,

unless a general plan to that end can be convincingly demonstrated to exist; and

for a pattern of conduct to be accepted as evidence of its existence, it would have

to be such that it could only point to the existence of such intent. […]

185 Tolimir AJ, para. 209; Bosnia v Serbia, para. 190; Croatia v Serbia, paras. 162-63. 186 Clark, p. 512. 187 Bosnia v Serbia, para. 190. See also Croatia v Serbia, paras. 162-63. 188 Bosnia v Serbia, para. 372. These very statements were expressly considered by the Trial Chamber.

(Judgement, para. 57 (P956), para. 399 (P1394). 189 Bosnia v Serbia, para 372. 190 Id.

No. MICT-13-55-A 42

Furthermore, and again significantly, the proposition is not consistent with the

findings of the ICTY relating to genocide.191

144. In coming to this conclusion, the ICJ analysed ICTY precedent, concluding that,

save in the case of Srebrenica, specific intent for genocide was not demonstrated.192

145. In a similar context, the ICJ, in its decision in Croatia v Serbia, found that the

evidence considered failed to demonstrate “intent to destroy, in whole or in part, the Croats

in the regions concerned”193 and that it was not established that “the only reasonable

inference that can be drawn from the pattern of conduct […] was the intent to destroy, in

whole or in part, the Croat group.”194 Likewise, in the Serbian counterclaim, the Serbian

population’s expulsion from Croatian Krajina was not found to have been undertaken with

genocidal intent: “even if Serbia’s allegations […] were true, that would still not prove the

existence of the dolus specialis: genocide presupposes the intent to destroy a group as

such, and not to inflict damage upon it or to remove it from a territory, irrespective of how

such actions might be characterized in law.”195

146. Other respected sources have also reached similar conclusions regarding

circumstances in which acts such as forcible displacement are not characterized as

genocide. In Israel v Eichmann, the Jerusalem District Court acquitted Eichmann of

genocide during the period in which it determined the German objective was expelling the

Jews, stating that:

With regard to the expulsion of Jews, […] between the beginning of the War and

mid-1941, […] We have found that these were organized by the Accused in

complete disregard for the health and lives of the deported Jews […] But in the

final analysis, a doubt remained in our minds as to whether there was that

intentional aim to exterminate which is required for the proof of a crime against the

Jewish People.196

147. The validity of this position has also been confirmed by respected academic

sources.197 The “abundant authority”198 available for the proposition that the events in the

191 Id, paras. 373-74. 192 Id, paras 374-76. 193 Croatia v Serbia, para. 439. 194 Id, para. 440. 195 Id, para. 514. 196 Israel v Eichmann (1961), para. 186. 197 Schabas, pp. 199-200; Behrens, p. 517. 198 W. Schabas, “The Contribution of the Eichmann Trial to International Law”, 26 LJIL 667 (2013), p. 675.

No. MICT-13-55-A 43

Municipalities case do not fulfil the requirements for genocide, confirms that the Trial

Chamber’s conclusion should not be disturbed on appeal.

148. Evidence referenced in the Judgement indicates that Trial Chamber considered

that President Karadzic and the Bosnian Serb Leadership did anticipate a co-existent

relationship with non-Serb groups, both initially and at each stage throughout the conflict.

Originally this was contemplated within Yugoslavia as an “equal federal Bosnia

Herzegovina”,199 where it would be possible for “the Serbs to be able to survive […] and

for all the other peoples to be able to survive together.”200 Later this was envisaged through

“the creation of a border separation with the other two national communities […] [and the]

“division of the city of Sarajevo into Serbian and Muslim parts and implementation of an

effective state government in each of these parts.”201 This co-existence was later

formalised in the abortive Vance-Owen Plan signed by the Accused202 and finally through

the Dayton Agreement.203 The Trial Chamber was entitled to take into account this

expectation that neighbouring entities would exist in which non-Serbs would live, when

finding no intent to destroy those groups.

149. As discussed above, dissolving a group, or removing a group from a particular

geographical region, does not inevitably constitute genocide.204 As the Trial Chamber in

Stakic noted:

The expulsion of a group or part of a group does not in itself suffice for genocide.

As Kress has stated, ‘[t]his is true even if the expulsion can be characterised as a

tendency to the dissolution of the group, taking the form of its fragmentation or

assimilation […].’205

150. Similarly, Behrens emphasises that “[d]estruction carries a distinct notion of

permanence which does not inhabit the concept of ‘expulsion”.206

151. While the Prosecution emphasises the “traumatic surrounding circumstances” of

the forcible displacement,207 the Prosecution never charged such conduct as serious mental

199 Judgement, para. 58. 200 Id, para. 2637. 201 Id, para. 57. 202 Id, para. 372 203 Id, para. 436. 204 Tolimir AJ, paras. 225, 233; Stakic TJ, para. 519, cited in Bosnia v Serbia, para. 190. 205 Stakic TJ, para. 519. 206 Behrens, p. 517. 207 Prosecution Appeal Brief, para. 119.

No. MICT-13-55-A 44

harm under Article 4(2)(b). Instead, it only charged serious mental harm as a consequence

of forcible transfers from Srebrenica.208 The ICTY has consistently found that genocidal

intent accompanied the crimes committed in Srebrenica, but has never made such a finding

for the Municipalities.

152. In finding that the forcible removal operation in Srebrenica occasioned serious

mental harm under Article 4(2)(b), the Trial Chamber emphasised the sudden separations

from and the loss of large numbers of male family members, and “anxiety as well as

feelings of helplessness and betrayal, which underpin an unwillingness or inability to

return to their former homes”.209 In Tolimir, the Appeals Chamber similarly noted that for

Srebrenica, “the painful separation process from their male family members […] the fear

and uncertainty as to their fate and that of their detained male relatives, and the appalling

conditions of the journey […] as well as the financial and emotional difficulties they

faced” taken holistically amounted to serious mental harm.210

153. The significant differences between the events in Srebrenica and those in the

Municipalities also answer the Prosecution’s criticism that the Trial Chamber “ignored the

biological aspect of genocidal intent altogether” and failed to use the word “biological” in

its analysis of genocidal intent.211 Notably the Prosecution in its Final Trial Brief also

never mentioned “biological” destruction, and the Prosecution never put its case on this

basis.

154. While the Appeals Chamber in Krstic accepted that “the Trial Chamber was

entitled to consider the long-term impact” of the killings in Srebrenica, namely the “severe

procreative implications […] potentially consigning the community to extinction”,212 no

one has suggested in the present case that the killings, serious bodily or mental harm, or

other culpable conduct such as forcible transfers had procreative implications for the

Bosnian Muslim population in the Municipalities.

155. In criticising the Trial Chamber’s consideration of detention conditions, the

Prosecution again falls into the error of attempting to transpose this Tribunal’s findings for

Srebrenica onto the events in the Municipalities. The Prosecution alleges that the Trial

208 Compare Indictment, para. 47(b)(Srebrenica) with para. 40(b)(Municipalities). 209 Judgement, para. 5664. 210 Tolimir AJ, para. 210. 211 Prosecution Appeal Brief, para. 115, fn. 415. 212 Krstic AJ, para. 28.

No. MICT-13-55-A 45

Chamber erroneously discounted detention conditions by failing to recognise that some

detainees were “fortunate enough to be expelled […] before being killed or subjected to

serious bodily or mental harm” and counting those detainees as “displaced”.213

156. But while the Trial Chamber found that President Karadzic made efforts to close

down the camps after international media began reporting on the conditions,214 the Trial

Chamber also noted that “by the time the Bosnian Serb Government officially decided to

close all ‘illegal camps’ on 27 October 1992, the make-shift detention facilities used

throughout the Municipalities by Serb Forces to detain non-Serbs had already largely

served their purpose of facilitating the process of the forcible removal of non-Serbs”.215

157. The circumstances are therefore not comparable to those noted in Krstic, where

international pressure mounting about Srebrenica was found to have explained the

omission to kill women and children.

158. The Trial Chamber also did not, as the Prosecution alleges, erroneously disregard

destroying cultural and religious property as a possible indicator of genocidal intent.216 In

setting out the applicable principles, the Trial Chamber expressly noted that, although not

underlying acts, attacks on cultural or religious property “may be considered evidence of

intent to physical destroy the group”.217 In analysing the pattern of crimes, the Trial

Chamber then recalled heavy damage or destruction of: 26 mosques in Zvornik,218 two

mosques in Foca,219 “mosques and other Muslim monuments” in Bratunac,220 17 mosques

and two churches in Prijedor,221 16 mosques and a church in Sanski Most,222 and eight

mosques in Kljuc.223 This destruction formed part of its assessment of the pattern of

crimes.

159. Similar remarks may be made of the Prosecution claims that the Trial Chamber

failed to properly consider the “broader destructive impact” of conduct such as sexual

213 Prosecution Appeal Brief, para. 120. 214 Judgement, para. 3498. 215 Id, para. 3399. 216 Prosecution Appeal Brief, para. 117. 217 Judgement, para. 553. 218 Id, para. 2616. 219 Id, para. 2617. 220 Id, para. 2618. 221 Id, para. 2620. 222 Id, para. 2621 223 Id, para. 2622.

No. MICT-13-55-A 46

violence and the targeting of leaders.224 The Trial Chamber specifically noted that such

conduct could contribute to destroying the Bosnian Muslim and Bosnian Croat populations

in the Municipalities, and found that these acts amounted to serious bodily or mental harm

under Article 4(2)(b).225 In assessing the pattern of crimes, it noted sexual violence in

Zvornik, Foca, Vlasenica and Prijedor, and the targeting of intellectuals in Bratunac and

political leaders in Sanski Most.226 The Trial Chamber also specifically considered that

“some prominent members” of the Bosnian Muslim and Bosnian Croat populations in the

Municipalities were targeted.227 The Trial Chamber was not required to enter into a

specific individual discussion of these aspects of the evidence and their specific long-term

effects.228 A Trial Chamber “need not spell out every step of its analysis”.229

160. For the reasons above, the Prosecution has failed to demonstrate that the Trial

Chamber adopted an overly narrow concept of genocidal intent in assessing the pattern of

crimes. In fact, the Trial Chamber’s analysis of intent was consistent with the Genocide

Convention and the jurisprudence that has interpreted its provisions.

D. Findings on genocidal intent were not unreasonable

161. When challenging the Trial Chamber’s evaluation of the evidence of genocidal

intent, the burden is on the Prosecution to demonstrate that it was “wholly erroneous”.230 It

must show that the evidence was “so unambiguous that a reasonable Trial Chamber was

obliged to infer that [genocidal] intent was established beyond a reasonable doubt” – a

“heavy burden”.231

162. 27 international judges have come to the conclusion in earlier proceedings at the

ICTY and ICJ that genocidal intent was not established in the Municipalities.232 That so

224 Prosecution Appeal Brief, para. 122. 225 Judgement, paras. 2580-82. 226 Id, paras. 2616-21. 227 Id, para. 2624. 228 Popovic AJ, para. 505; Tolimir AJ, para. 247. 229 Stakic AJ, para. 47. 230 Kupreskic AJ, para. 30. See also Stakic AJ, para. 10. 231 Stakic AJ, para. 56. 232 ICTY Judges Robinson, May and Fassi-Fihri (Sikirica), Judges Schomburg, Vassylenko, and Argibay

(Stakic), Judges Pocar, Shahabuddeen, Guney, Vaz, and Meron (Stakic appeal), Judges Agius, Janu, and

Taya (Brdjanin), Judges Orie, Canivell, and Hanoteau (Krajisnik), ICJ Judges Higgins, Owanda, Simma,

Tomka, Abraham. Keith, Sepulvedaamor, Bennouna, Skotnikov, Kreca.

No. MICT-13-55-A 47

many judges have declined to find genocidal intent makes it difficult to conclude that the

Trial Chamber’s judgement in this case was unreasonable.

163. Indeed, the Prosecution convinced the Trial Chamber that the findings of the

Krajisnik and Brdjanin judgements were so reliable that it should take judicial notice of

926 adjudicated facts from those judgements. Now, it asks the Appeals Chamber to find

that the conclusion from those judgements, on the same evidence, that President Karadzic

and the Bosnian Serb leadership did not have genocidal intent, was not even a reasonable

one.

164. In assessing whether “all of the evidence, taken together” could establish

genocidal intent,233 the Trial Chamber considered the evidence about the circumstances in

the Municipalities that the Prosecution claims was not fully taken into account.234 As the

Prosecution has focused on Prijedor in its appeal, the same approach is taken below.

1. The pattern of the crimes

165. The first incidents to which the Prosecution points in support of the proposition

that no reasonable Trial Chamber could have found that genocidal intent was not the only

reasonable inference are the attacks on Hambarine, Ljubija, Kozarac and Kamicani.235 In

its assessment of genocidal intent, the Trial Chamber recalled, with appropriate cross-

references, its earlier findings that in May 1992, “villages in the predominantly Muslim

areas of Kozarac and Brdo, as well as in Brisevo were attacked by Serb Forces; villages

were shelled, set ablaze, and for the most part destroyed. During these attacks, Bosnian

Muslims and Croats were killed”.236 Thus, the Trial Chamber took these attacks into

account.

166. The same attacks have also been previously analysed by this Tribunal in other

cases where genocidal intent was not found. For example, in Stakic, the Trial Chamber

described these attacks as heralding “the first in a series of measures […] to rid the

233 Judgement, para. 550. 234 See, inter alia, Judgement, paras. 689, 691, 693, 709, 714, 730, 731, 737, 740, 749, 780, 784, 853, 855-56,

861, 869, 876, 903, 911, 913-16, 919-23, 1103, 1129-31, 1143, 1146, 1153, 1159, 1170, 1179, 1207, 1213,

1230, 1237, 1240, 1242, 1244, 1249, 1260, 1264, 1269-74, 1301, 1311, 1314-15, 1320, 1328, 1338, 1349,

1353, 1507-08, 1515, 1522, 1529, 1531-36, 1544, 1555, 1605, 1637, 1657, 1663, 1677, 1681, 1684-89, 1715,

1735, 1749, 1791, 1805, 1832, 1861, 1871, 1877, 1885, 1945, 1960, 1964-65, 1969, 1973, 1978, 1991-92,

2004, 2011, 2018, 2024. 235 Prosecution Appeal Brief, para. 131. 236 Judgement, para. 2620.

No. MICT-13-55-A 48

municipality of non-Serbs”,237 and noted all the same features of the attacks to which the

Prosecution in this case points: “intense and unrelenting” shelling, shooting “aimed at

people fleeing”, torching of houses, “extensive” property damage, killings and

mistreatment.238 It heard the same evidence that entire villages were “razed” which the

Prosecution emphasises.239 It also considered the testimony to which the Prosecution

refers, that of Dr Merdzanic – who testified that he was not permitted to evacuate two

injured children and was instead told that all “balija” should die there.240 But in that case,

the Trial Chamber concluded that it could not find genocidal intent; the intent was solely to

force non-Serbs to leave Prijedor, not to destroy the Bosnian Muslims.241

167. The Chamber was also unequivocal in its findings regarding other potentially

destructive measures imposed on persons in Prijedor, including detentions and forcible

transfers, taking full account of this evidence in weighing up factors both for and against

genocidal intent. For example, the Trial Chamber found that the Prijedor Crisis Staff and

civilian authorities facilitated the non-Serb population of Prijedor’s movement out of the

municipality, but that this was done by negotiating with the ICRC and the Prijedor Red

Cross.242 It was thus open to the Trial Chamber to conclude that, although a factor

potentially in favour of genocidal intent was transferring the non-Serb population, a factor

against it was cooperating with humanitarian organisations. Such reasoning discloses no

error by the Trial Chamber.

168. The Trial Chamber in Stakic also noted: “[s]ecurity for the Serbs and protection

of their rights seems to have been the paramount interest”.243 In this regard, important

factual findings in the case against President Karadzic include that before the take-over of

Prijedor, the TO, Green Berets and other Bosnian Muslim groups were active in the

Kozarac area244 and the TO had a presence in Hambarine.245 On 22 May 1992, Serb

soldiers were attacked at a Bosnian Muslim checkpoint near Hambarine,246 and on 24 May

237 Stakic TJ, para. 479. 238 See e.g. Stakic TJ, paras 142-45, 252 (Kozarac), 132-33 (Hambarine). 239 See Judgement, para. 1621, citing KDZ048, P678 (Transcript from Stakic). 240 Stakic TJ, para. 146. See Judgement, para 1625 citing P3881 (Idriz Merdzanic transcript from Stakic). 241 Stakic TJ, para 553. 242 Judgement, para. 1901. 243 Stakic TJ, para. 553. 244 Judgement, para. 1614. 245 Id, para. 1662. 246 Id, para. 1663.

No. MICT-13-55-A 49

a Serb army column was attacked from the direction of Kozarac.247 Thus, the Bosnian

Muslims in the areas attacked were already armed and militarily organised.248 It was not

until 29 May that the ARK Crisis Staff issued a decision that “all Muslims and Croats, who

so wish, should be able to move out of the area” (in contrast to its earlier conclusion on 20

May that there was “no reason for the population of any nationality to move out”),

suggesting a connection between these provocative incidents and the ensuing attacks.249

169. The attacks on these areas were also analysed by the Trial Chamber in

Brdjanin,250 and in Bosnia v Serbia, where the ICJ noted that “particular emphasis” was

placed in submissions on “the shelling and attacks on Kozarac, 20 km east of Prijedor, and

on Hambarine in May 1992”.251 In neither case was it found that the crimes in Prijedor

were committed with genocidal intent.

170. In each area, the number killed represented a very small percentage of the

population. In Kozarac and surrounding areas, the Trial Chamber found at least 80 Bosnian

Muslims from a population of 27,000 were killed (0.3%) between 24 May and June

1992.252 In Kamicani, at least 9 were killed from a population of 2,000-3,000 (0.3-

0.45%)253 and in Hambarine and Ljubija, at least 6 from a combined population of 4,891

(0.12%).254 The Prosecution has not pointed to any data on the number of people suffering

serious bodily or mental harm, or allegedly subject to acts calculated to destroy the group.

171. The next incident the Prosecution emphasised is the attack on Prijedor’s old

town, Stari Grad.255 Again, this attack was precipitated by a Bosnian Muslim attack on

Prijedor town on 30 May 1992.256 The evidence the Prosecution relies upon was also

admitted in previous cases such as Stakic, where the Trial Chamber considered destruction

and looting of Bosnian Muslim and Bosnian Croat homes, businesses and places of

247[REDACTED]; D4195, para 18. 248 See also re recruitment and arming before to the attacks: D4138, para. 3; D4195, paras. 10,

15;[REDACTED]; Mujadzic, T20658-59 (video: 11:10-15:42); D1839, para. 1; D1841; D4681; Sejmenovic,

T20609-11 (video: 53:06-57:15). 249 See D1309 (Conclusions of ARK Crisis Staff, 20 May 1992); P3461 (Conclusions of ARK Crisis Staff, 29

May 1992); Adjudicated Fact 541. 250 Brdjanin TJ, paras. 104, 401-05, 476, 626-27 (Hambarine, Kozarac, Kamicani). 251 Bosnia v Serbia, para. 257. 252 Judgement, paras. 1612, 1637. 253 Id, paras. 1642, 1649. 254 Id, para 1677; P6684. 255 Prosecution Appeal Brief, para 132. 256 Judgement, para. 1605. The perpetrators were dressed in civilian clothing (D4195, para 19), and the attack

resulted in the killing of 17 Serb soldiers and policemen and wounding of several civilians (D4138, para 38).

No. MICT-13-55-A 50

worship.257 The evidence on which President Karadzic’s Trial Chamber relied to make the

factual findings to which the Prosecution draws attention is predominantly drawn from

Nusret Sivac’s evidence in the Stakic case. Sivac testified that: the radio played “Chetnik”

songs and appealed to Serbs to “lynch” non-Serbs; tank and grenade fire was deployed;

mosques were destroyed; non-Serbs were harassed and beaten; and homes were looted and

non-Serbs evicted.258 But as noted above, the Trial Chamber in Stakic was unable to find

genocidal intent.

172. The Prosecution then emphasises Trial Chamber’s findings about attacks on

villages in the Brdo area in July 1992.259 The Trial Chamber noted these same incidents in

its summary of the pattern of crimes, including the attack on Brisevo.260 These crimes have

also been previously considered by this Tribunal in cases such as Brdjanin, Stakic and

Krajisnik, where destroying homes and places of worship, looting and killings were

recalled by those Trial Chambers.261 For the attack on Biscani,262 the Trial Chamber was

unable to determine how many of the 300 non-Serbs killed were combatants and how

many were civilians.263

173. The Trial Chamber’s findings in the case against President Karadzic about the

attack on Brisevo on 24-26 July are largely based on Ivo Atlija’s testimony in Stakic,264

being the same evidence that the Trial Chambers in Brdjanin and Krajisnik considered.265

In each case, no genocidal intent was found for the crimes in Prijedor.

174. Similarly, separating men from women and children in the aftermath of such

attacks and detaining them in separate facilities in Prijedor266 was noted by the Trial

Chambers in Stakic, Krajisnik and Brdjanin.267

257Stakic TJ, paras. 276-80. 258 Nusret Sivac, P3478 (Transcript from Stakic) cited at Judgement, fns. 5560-65, 5567-69, 5575, 5577

(paras. 1606-10). 259 Prosecution Appeal Brief, para. 133. 260 Judgement, para. 2620. 261 Brdjanin TJ, paras. 407-12; 625, 653; Stakic TJ, paras. 292, 831; Krajisnik TJ, paras. 480, 482. 262 See Brdjanin TJ, paras. 407-09; Stakic TJ, paras. 265, 290, 861-62. 263 Judgement, para. 1715: “at least 300 non-Serbs, including civilians, were killed by Serb Forces”. 264 Id, paras 1720-33. Ivo Atlija’s evidence given in Stakic is referenced in every footnote from fn. 5885 to

5925. 265 Brdjanin TJ, paras. 411-12, 653; Krajisnik TJ, para. 482. 266 Prosecution Appeal Brief, para. 134. 267 See e.g. Stakic TJ, para. 143; Krajisnik TJ, paras. 477, 487; Brdjanin TJ, paras. 115, 549.

No. MICT-13-55-A 51

175. The Trial Chamber mentioned the detention conditions268 when considering the

pattern of crimes to determine whether it could find genocidal intent, noting that “the

conditions in these detention facilities were, in general, abysmal, that detainees were

subjected to frequent and severe beatings, rape and other acts of sexual violence, and that

some were killed”.269

176. The Trial Chamber’s findings on the three key detention facilities – Omarska,

Keraterm, and Trnopolje – mirror the findings made by the ICTY and ICJ in earlier cases,

including Brdjanin, Stakic and Krajisnik, for killings,270 beatings and torture,271 rapes and

sexual violence,272 targeting leaders and professionals,273 and detention conditions.274 In

each earlier case, genocidal intent could not be inferred from the pattern of crimes.

177. For example, in Brdjanin, the Trial Chamber noted that “particularly in camps

and detention facilities”, the victims were “predominantly, although not only, military-

aged men” which could suggest that the acts were designed to “eliminate any perceived

threat to the implementation of the Strategic Plan”.275 In Stakic, the Trial Chamber in

assessing whether it could infer genocidal intent noted that “while approximately 23,000

people were registered as having passed through the Trnopolje camp at various times when

268 Prosecution Appeal Brief, para. 135. 269 Judgement, para. 2620. 270 Omarska: See, e.g. Brdjanin TJ, paras. 441-42, 453-54; Krajisnik TJ, paras. 487, 490; Stakic TJ, paras.

208-22; Bosnia v Serbia, paras 262-64. Keraterm: See, e.g. Brdjanin TJ, paras. 115, 454-55; Krajisnik TJ,

paras. 488, 499; Stakic TJ, paras. 203-07, 223-24; Bosnia v Serbia, paras. 265-66. Trnopolje: See, e.g.

Brdjanin TJ, paras 449-50, 457-60; Stakic TJ, paras 225-27; Krajisnik TJ, paras. 493, 499; Bosnia v Serbia,

paras. 267-69. 271 Omarska: See, e.g. Brdjanin TJ, paras. 447 (detainees ordered to help move dead bodies), 844-46, 848

(beatings and humiliation); Krajisnik TJ, paras. 487, 490; Stakic TJ, paras. 167, 229-233; Bosnia v Serbia,

para. 312. Keraterm: See, e.g. Brdjanin TJ, paras. 538, 851-53; Krajisnik TJ, paras. 488, 499; Stakic TJ,

paras. 237-39; Bosnia v Serbia, para. 313. Trnopolje: See, e.g. Brdjanin TJ, paras. 510, 856-57; Krajisnik TJ,

paras. 493, 499; Stakic TJ, paras. 242-43; Bosnia v Serbia, para. 314. 272 Omarska: See, e.g. Brdjanin TJ, paras. 515-17, 847; Krajisnik TJ, paras. 487, 490; Stakic TJ, paras. 234-

36; Bosnia v Serbia, para. 312. Keraterm: See, e.g. Brdjanin TJ, paras. 512, 852; Krajisnik TJ, para 499;

Stakic TJ, paras. 240-41; Bosnia v Serbia, para. 313. Trnopolje: See, e.g. Brdjanin TJ, paras. 513-14, 856;

Stakic TJ, para. 244; Krajisnik TJ, paras. 493, 499; Bosnia v Serbia, para. 314. 273 Omarska: See, e.g. Brdjanin TJ, paras. 445-46. 274 Omarska: See, e.g. Brdjanin TJ, paras. 444, 930-34; Krajisnik TJ, para. 490; Stakic TJ, paras. 167-69;

Bosnia v Serbia, para. 348. Keraterm: See, e.g. Brdjanin TJ, paras. 936-39; Krajisnik TJ, para. 488; Stakic

TJ, para. 163; Bosnia v Serbia, para. 349. Trnopolje: See, e.g. Krajisnik TJ, para. 493; Brdjanin TJ, paras.

941-45; Stakic TJ, paras. 190-91; Bosnia v Serbia, para. 350. 275Brdjanin TJ, para. 979.

No. MICT-13-55-A 52

it was operational and through other suburban settlements, the total number of killings in

Prijedor municipality probably did not exceed 3,000”.276

178. The next aspect the Prosecution emphasised was the suffering of those not direct

victims of genocidal acts.277 Previous Trial Chambers also considered these aspects –

including loss of homes and property, destroying places of worship, and uncertainty about

the “fate of missing loved ones”.278 Destroying homes and looting and destroying mosques

and churches were all noted by the Trial Chamber in its summary of the pattern of

crimes.279

179. Therefore, the Trial Chamber’s findings complained of by the Prosecution have

been considered in previous decisions that reached the same result, concluding that

genocidal intent could not be inferred. As the evidence in the case against President

Karadzic has predominantly been drawn from evidence adduced in these earlier trials, it is

unsurprising that the same conclusion was reached.

180. Examining the fate of the Prosecution’s prominent witnesses from Prijedor

confirms the lack of genocidal intent.

181. [REDACTED],280[REDACTED],281 [REDACTED].282

276 Stakic TJ, para. 553. 277 Prosecution Appeal Brief, paras. 136-37. 278 See, e.g. Brdjanin TJ, paras. 503-18 (executions in front of others, those alive made to collect bodies and

bury them, causing “severe pain and suffering”), 624-30 (destroying homes, loss of property), 652-53

(destroying Muslim and Catholic institutions); Stakic TJ, paras. 298-305 (destroying mosques and churches);

868 (cannot forget the missing and dead); Krajisnik TJ, paras. 473 (destroying mosques and other religious

institutions), 498 (destroying homes and businesses); Bosnia v Serbia, para. 337 (destroying religious

monuments). 279 Judgement, para. 2620. 280 [REDACTED]. 281 [REDACTED]. 282 [REDACTED].

No. MICT-13-55-A 53

Nusret Sivac

182. Similarly, Nusret Sivac, a television reporter, was arrested on 10 June 1992283,

released the same day, and arrested again ten days later.284 He was taken to Omarska camp,

then Trnopolje, and then released in August 1992. He returned to Prijedor where he

remained until December 1992.285 His sister, Nusreta Sivac, a Judge in Prijedor, was

likewise in Bosnian Serb custody at Omarska for two months, and was not killed.286 After

her release, she remained in Prijedor town.287

283 P3478, p. 58. 284 Id, p. 64, 69. 285 Id, p. 70, 137-38, 142. 286 T20383-84. 287 Id.

No. MICT-13-55-A 54

Kerim Mesanovic

183. Kerim Mesanovic worked for the Municipality Secretariat for National

Defence.288 He was arrested on 24 June 1992 and taken to Omarska.289 On 6 August 1992,

he was transferred to Trnopolje Camp and released soon thereafter.290

288 P3528, paras. 1-2, 5. 289 Id, paras. 20-21, 23. 290 Id, para. 59.

No. MICT-13-55-A 55

Mevludin Sejmenovic

184. Mevludin Sejmenovic, an SDA party founding member and member of

Parliament representing the Prijedor area,291 was taken to Omarska,292 but in August 1992,

was released by Vojo Kupresanin, an SDS leader, who took him to Banja Luka. There he

stayed with a family member until January 1993.293

291 T20454 (video: 03:23-05:34). 292 T20491-92 (video: 14:27-20:29). 293 T20504-06 (video: 47:10-55:10), T20512 (video: 66:35-69:25).

No. MICT-13-55-A 56

Idriz Merdzanic

185. Idriz Merdzanic was a doctor in Prijedor municipality.294 He was arrested and

transported to Trnopolje camp.295 He was released on 30 September 1992.296

186. The Bosnian Serbs had many opportunities to kill these people if they were intent

on destroying the Muslims as a group or its leadership.

294 P3881, p. 3. 295 Id, p. 27, 34. 296 Id, p. 78.

No. MICT-13-55-A 57

Ewa Tabeau

187. Exhibit D2250, a chart prepared by Prosecution demographic expert, Ewa

Tabeau, confirms that the findings of lack of genocidal intent were correct. The chart,

reproduced below, shows that 2.6% of Bosnian Muslims died during the three-and-a-half

year war. Given that the figures include soldiers killed in combat and civilians killed in

1993-95, including an estimated 5,000 Muslims killed in the 1995 Srebrenica events,297 the

figure for 1992 would be less than 2%.

297 T28412 (video: 74:12-76:50).

No. MICT-13-55-A 58

188. While genocide does not require a minimum number of victims, courts have

looked to the scale of the killings when determining whether they were committed with the

intent to destroy the group.298 The 2% figure, when compared to the 60% of Jews killed in

Europe during the Holocaust,299 and 70% of Tutsis killed during the Rwandan genocide,300

speaks volumes about whether the acts that occurred in the Municipalities were done with

genocidal intent.

189. The low number of underlying acts combined with the opportunity available to

the Serb forces, and the targeting largely of military-aged men combined with the security

concerns facing the Serb forces, all give rise to a reasonable inference that genocidal intent

was not present.

2. President Karadzic’s and other JCE members’ statements

190. As the Appeals Chamber emphasised in Stakic, evidence demonstrating ethnic

bias “however reprehensible, does not necessarily prove genocidal intent”.301 In

considering whether genocidal intent could be found, the Trial Chamber noted its earlier

finding that President Karadzic referred to the Serb people’s historical grievances.302 But

as the Trial Chamber noted, no evidence existed that “references to the historic genocide

against Serbs were used to call on the Bosnian Serbs to do the same”.303

298 Sikirica Rule 98 bis Decision, para. 94; Stakic TJ, para. 553; Brdjanin TJ, paras. 973-74; Krajisnik TJ,

paras. 868-69. 299 U.S. Holocaust Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005687. 300 P. Verwimp, “Death and Survival during the 1994 Genocide in Rwanda”, 58(2) Population Studies

(Camb) 233-45 (2004). 301 Stakic AJ, para. 52. 302 Judgement, para. 2598. See Prosecution Appeal Brief, paras. 140-41. 303 Judgement, para. 2598.

No. MICT-13-55-A 59

Herbert Okun

191. The Trial Chamber also found that in June 1992, President Karadzic stated

Bosnian Serbs should “defend their borders against attacks but not attack themselves”.304

While the Prosecution emphasises Herbert Okun’s remarks warning that past crimes

should not be viewed as justifying “all of Bosnian Serb behaviour”, in cross-examination,

when confronted with President Karadzic’s numerous orders regarding protecting non-Serb

civilians and POWs and punishing crimes against them, Okun testified:

Dr. Karadzic, I'm surprised to hear you say that I alleged that your appeals were

disingenuous. I said the opposite. I said they were praiseworthy, I said they were

commendable, I said they had merit. I said they were not observed in the field, but I

never accused those documents of being anything but sincere.305

192. The Bosnian Serb leadership’s references to WWII have also been considered by

previous Trial Chambers in assessing whether the crimes in the Count 1 Municipalities

were committed with genocidal intent. In Krajisnik, the Trial Chamber found that

memories Bosnian Serbs’ historical suffering left fear which was fuelled by “extreme and

304 Id, para. 2658. 305 T1818.

No. MICT-13-55-A 60

aggressive messages” expressed by “some Bosnian Muslims and Bosnian Croats”, and that

“the SDS leadership did not discourage such fears, but rather shared them and made them

public”.306 The Trial Chamber noted that statements by Krajisnik and others in the Bosnian

Serb leadership suggested that Serbs had to live separately and that there existed

historically separate Serb territories, but concluded that these remarks served to

“retrospectively legitimize the forcible removal. They did not reveal an intent to destroy

[…]”.307

193. In Stakic, the Trial Chamber noted remarks by Dr Stakic – including that the

Muslims in Bosnia “were created artificially” – and concluded that, while these remarks

revealed “an intention to adjust the ethnic composition of Prijedor” and demonstrated

intolerance of Muslims, did not establish genocidal intent.308 This conclusion was upheld

on appeal.309

194. The ICTY’s jurisprudence thus demonstrates that the Trial Chamber was well

within its discretion when arriving at the conclusion that it “did not find evidence to

demonstrate that these constant references to the historic genocide against Serbs were used

to call on the Bosnian Serbs to do the same.”310

195. President Karadzic’s 15 October 1991 speech, to which the Prosecution also

draws attention,311 warned of the “chaos” that could result from attempts to resolve issues

in an unconstitutional manner.312 As the Trial Chamber found, the speech warned that the

potential conflict if the Bosnian Muslims continued to pursue independence would be

“extremely violent”.313 That does not amount to genocidal intent. Similarly, the Trial

Chamber found that President Karadzic’s statements in July 1992 to which the Prosecution

refers,314 when placed in context, did not demonstrate genocidal intent – in fact, President

Karadzic went on to state that the Bosnian Muslims would have “all the rights that we

306Krajisnik TJ, para. 43. 307 Id, para. 1092. 308 Stakic TJ, para. 554. 309 Stakic AJ, paras. 51-52. 310 Judgement, para. 2598, contra Prosecution Appeal Brief, para. 141. 311 Prosecution Appeal Brief, para. 142. 312 D1270. 313 Judgement, para. 2600. See also para. 2599. 314 Prosecution Appeal Brief, para. 142.

No. MICT-13-55-A 61

have” in the envisioned Serb state “under the condition that they are not hostile and that

they leave the weapons”.315

196. In the telephone conversations in late 1991 on which the Prosecution relies,316

President Karadzic stressed that the moves towards independence were unconstitutional

and expressed concern about the Bosnian Muslims “preparing for war”.317 Moreover,

President Karadzic distinguished between the militant Muslim leadership’s

fundamentalism and ordinary Bosnian Muslim civilians, stating that “there are ordinary

people out there, and I think that they should be welcomed with open arms”.318 President

Karadzic emphasised that the conflict would hurt both sides, and agreed with Krajisnik

that: “We should say we will all disappear, both sides”.319 President Karadzic also

repeatedly stated that war should be avoided.320 Therefore, these conversations also fail to

demonstrate genocidal intent.

197. The Prosecution also emphasises Mladic, Seselj and Plavsic’s statements.321

Mladic’s remarks about the “enemy” […] “vanishing” and “kick[ing] the hell out of the

Turks”, in context, relate to the army, rather than civilians.322 Indeed, at the same Bosnian

Serb Assembly session in which Mladic made the above remarks about “vanishing”,

President Karadzic stated that it would be “impossible” to make “the Muslims vanish, and

that we keep the entire territory”; instead, “we must give them something”. He also noted

that they could not declare a ban on returning refugees under international law.323

198. The Trial Chamber considered statements made by Mladic324 and “highly

inflammatory” statements of others such as Seselj and Plavsic “in the context of the totality

of the evidence” in determining whether it could find genocidal intent,325 yet was unable to

conclusively find such intent.326

315 Judgement, para. 2601, citing D92, p. 86. 316 Prosecution Appeal Brief, para. 142. 317 D0279, p. 2. 318 Id, p. 12. See also T3664. 319 P3200. 320 See, e.g. D86; D4548; D4550; D4551; D4553; P1347; P5605; P5621; P5788. 321 Prosecution Appeal Brief, paras. 143-44. 322 P1385, P4442. See also P4441: “The Turks can’t do a thing to us”. 323 See Judgement, paras. 2766-68, citing P1385. 324 Id, paras. 2603-04. 325 Id, para. 2602. 326 Id, para. 2605.

No. MICT-13-55-A 62

199. Further, the Prosecution fails to take into account that the Trial Chamber

examined, at some length, statements made at the Bosnian Serb Assembly and considered

factors tending both towards327 as well as away from genocidal intent, before finding

overall that such statements were not made with the intent to destroy a part of the Bosnian

Muslim group.328

200. Concerning Drljaca’s promotion, in Stakic, the Trial Chamber also considered the

Drljaca’s acts and was “not satisfied that Drljaca pulled the Crisis Staff into a genocidal

campaign”, even though the evidence portrayed him as a “brutal person”.329 Moreover, as

the Trial Chamber noted, President Karadzic was “angry” about the Koricanske Stijene

incident,330 and demanded an investigation.331

E. Conclusion

201. The Trial Chamber’s evaluation of the evidence of genocidal intent was not

“wholly erroneous”, nor was the evidence “so unambiguous that a reasonable Trial

Chamber was obliged to infer that [genocidal] intent was established beyond a reasonable

doubt”.332 This Trial Chamber, like all others that have assessed the same evidence, found

that genocidal intent was not established. The Prosecution has adduced no reason for the

Appeals Chamber to now abandon 14 years of solid and consistent precedent from the

ICTY and ICJ and reverse the Trial Chamber’s findings on genocidal intent.

327 See analysis of statements of Miroslav Deronjic at Judgement, para. 2606. 328 See analysis of Milan Nedic’s statements at Judgement, paras. 2607-10. 329Stakic TJ, para. 555. 330 Judgement, para. 3346. 331 Id, para. 3418. 332 Stakic AJ, para. 56.

No. MICT-13-55-A 63

4. A life sentence was not required

In Brief

The Trial Chamber had the discretion to consider mitigating circumstances

and impose a sentence less than life imprisonment despite the gravity of the

crimes.

202. President Karadzic agrees that the Trial Chamber erred in imposing a 40-year

sentence. As set forth in his appeal brief, the Trial Chamber ignored several mitigating

circumstances.333

203. With so many errors in the Trial Chamber’s Judgement, the Appeals Chamber

may order a new trial or impose its own sentence for any convictions left standing. But if

the entire Judgement is affirmed, no reason exists to reverse the Trial Chamber for failing

to impose a life sentence.

A. The Chamber’s findings do not “require” a life sentence

1. Mandatory Life Sentences are not provided

204. Had the Security Council desired a mandatory life sentence for the gravest

crimes, it would have been included in the Statute. Had the Judges desired a mandatory life

sentence, it would have been included in the Rules. A mandatory life sentence appears

nowhere in ICTY’s constitutive documents.

205. In the ICTY’s early years, the Prosecution argued for fixed sentencing

guidelines.334 The Appeals Chamber rejected this proposal, finding a “definitive”

sentencing scale’s benefits to be “questionable”. It emphasised that “the underlying

principle is that the sentence imposed largely depended on the individual facts of the case

and the individual circumstances of the convicted person”.335 The “considerable amount of

333 Radovan Karadzic’s Appeal Brief, Grounds 47-50. 334 Delalic AJ, para. 715. 335 Id, paras. 716-17.

No. MICT-13-55-A 64

discretion”336 afforded to a Trial Chamber meant that the Judges were within their right “to

impose different sentences for the same type of crime”.337

206. Now, the Prosecution once again contends that some crimes are so serious that

they warrant restricting judicial discretion, with “no room for any other sentence” than a

life sentence.338

207. This argument cannot be reconciled with the emphasis placed by this Appeals

Chamber on the broad discretion afforded to a Trial Chamber in sentencing339 – a position

other international courts and tribunals have adopted.340 Fixed or mandatory sentences

redistribute discretion from Judges to prosecutors in a manner inconsistent with Trial

Chambers’ overriding obligation to individualise a penalty to fit the individual

circumstances of the case.

208. The Prosecution’s approach has adverse implications. A finding that some crimes

“require” a life sentence risks undermining any incentive for those who have engaged in

atrocities, to then engage in peace. A reduction in sentence should be available to those

who, “despite their past actions have, subsequent to their crimes, made a critical and

decisive contribution to the peace process.”341 Encouraging this kind of behaviour may

have a greater practical impact on the life of victims and survivors than imposing a life

sentence on the perpetrator.

209. Trial Chambers have put this principle into practice. Colonel Vidoje Blagojevic

and Dragan Jokic’s sentences for crimes at Srebrenica were reduced due to their de-mining

efforts after the war.342 General Dragomir Milosevic’s sentence for crimes in Sarajevo was

reduced due to participating in an anti-sniper agreement.343 At the ICC, Germain Katanga’s

sentence was reduced for participating in disarming and demobilising child soldiers in

336 Id, para. 717. 337 Furundzija AJ, para. 249. 338 Prosecution Appeal Brief, para. 159. 339 Delalic AJ, para. 717. 340 Bagosora AJ, para. 419: Prosecutor v Taylor, No. SCSL-03-01-A, Judgment (26 September 2013), para.

665. 341Prosecutor v Sesay et al, No. SCSL-04-15-T, Sentencing Judgement (8 April 2009), para. 225 (“RUF SJ”). 342 Blagojevic TJ, para. 860. 343 D. Milosevic TJ, para. 1003.

No. MICT-13-55-A 65

Ituri, even though he acted as an accessory to crimes against humanity of “particular

cruelty” during the horrific attack on Bogoro in February 2003.344

210. The Trial Chamber was under no compulsion to impose a mandatory life sentence

in the present case, nor was any restriction on judicial discretion automatically invoked by

the gravity of the crimes for which President Karadzic was convicted.

2. The Trial Chamber was aware that a life sentence is greater

than 40 years

211. The Prosecution arguments centre on the fact that a fixed 40-year sentence is less

than a life sentence.345 This is not in dispute, nor was the Trial Chamber unaware of this

fact.

212. In Galic, the President held that, for early release, a life sentence should be

treated as equivalent to more than a 45-year sentence.346 Thus a person serving a life

sentence would not be ordinarily eligible for early release until he served at least 30 years.

213. When sentencing President Karadzic to 40 years’ imprisonment, the Trial

Chamber would have calculated that he would be 89 years old by the time he served two

thirds of this sentence. Had it imposed a life sentence, President Karadzic would be 93

years old after serving 30 years.

214. Thus, the Trial Chamber could have been under no illusion that it was imposing a

life sentence.

3. Sentences in other cases do not demonstrate any error

215. The Appeals Chamber has emphasised that, as a general principle, comparison

between cases “is often of limited assistance.”347 While the Appeals Chamber did not

disagree that two accused convicted of similar crimes in similar circumstances should not

in practice receive very different sentences, it held that “often the differences are more

significant than the similarities, and the mitigating and aggravating factors dictate different

results.”348

344 Prosecutor v Katanga, No. ICC-01/04-01/07, Decision on Sentence pursuant to Article 76 of the Statute

(23 May 2014), para. 115. 345 Prosecution Appeal Brief, paras. 160-63. 346 Prosecutor v Galic, No. MICT-14-83-ES, Reasons for the President’s Decision to Deny the Early Release

of Stanislav Galic and Decision on Prosecution Motion (23 June 2015), para. 35. 347 Delalic AJ, paras. 719, 798. 348 Id, para. 719.

No. MICT-13-55-A 66

216. With this in mind, the parties’ focus on sentences imposed in other cases has been

unpersuasive.349 Individual circumstances and mitigating or aggravating circumstances

vary. In this case, the Trial Chamber considered President Karadzic’s voluntary

relinquishing of power and withdrawal from public life to be a mitigating circumstance.350

There is no similar situation at the ICTY, and therefore no disparity with other sentences.

4. The Trial Chamber provided a reasoned opinion

217. The Prosecution’s 413-page Final Trial Brief devoted four paragraphs to

sentence.351 Its arguments made no reference to comparable cases, or the mitigating

circumstances it was on notice the Defence would pursue,352 nor did it attempt to “situate

Karadzic’s crimes in relation to previous cases”.353 Its oral arguments were similarly

brief.354

218. In such circumstances, criticisms of “inadequate reasoning” are difficult to

accept.355 The criticism that the Trial Chamber only addressed those cases the Defence

raised, when the Prosecution itself raised none, is unfair.356 An appeal “is not designed for

the purpose of allowing parties to remedy their own failings or oversights during trial or

sentencing.”357 The Prosecution cannot impugn the Trial Chamber for not having taken

into account the arguments it submits for the first time on appeal.

219. A Trial Chamber’s “obligation to clearly articulate” why it did not impose a life

sentence, features nowhere in the Tribunal’s sentencing practice.358 The Prosecution points

to no case where a Trial Chamber explained why it did not impose a life sentence. A

survey of cases across both the ICTY and ICTR reveals that none have. Nor have Trial

Chambers been required to explain when deviating from the Prosecution’s proposed

sentence. The Prosecution claims errors on the basis of standards that do not exist.

349 President Karadzic’s comparison of his case with those of his two alleged JCE accomplices—Biljana

Plavsic (11 years) and Momcilo Krajisnik (20 years) did not persuade the Trial Chamber. Defence Final Trial

Brief (29 August 2014), para. 3429; Judgement, para. 6067. 350 Judgement, para. 6057. 351 Prosecution Final Trial Brief, paras. 1119-22. 352 Submission of Evidence Related to Sentencing (8 January 2014); Prosecution Response to Karadzic’s

Submission of Evidence Related to Sentence: Holbrooke Agreement, (15 January 2014). 353 Prosecution Appeal Brief, para. 169. 354 T47699 (video: 13:20-14:21). 355 Prosecution Appeal Brief, paras. 151, 169-72, 176. 356 Id, para. 172. 357 Erdemovic AJ, para. 15. 358 Prosecution Appeal Brief, para. 170.

No. MICT-13-55-A 67

220. The Trial Chamber’s reasoning is then impugned on the basis that it “does not

mention the Prosecution’s recommended sentence of life imprisonment”.359 No sensible

argument can be made that the Trial Chamber failed to consider the Prosecution’s minimal

submissions. Of the four paragraphs provided, the Trial Chamber in fact reproduced one in

whole,360 and summarised the remainder.361 That the Trial Chamber did not specify that

“the Prosecution asks for life” is not persuasive.

B. The Trial Chamber took into account President Karadzic’s abuse of

authority in assessing the gravity of the crimes

221. The Trial Chamber said that it declined to take into account “abuse of authority”

as an aggravating circumstance, because it already took it into account “in relation to the

gravity of the crimes”.362 The Prosecution says that, in fact, it did not.

222. A Trial Chamber is not required to articulate every step of its reasoning. If a Trial

Chamber says “we took abuse of authority into account in assessing the gravity of the

crime”, then it can be presumed to have done so. That the word “abuse” does not appear in

the section on gravity is a red herring. “Abuse of authority” means its wrongful exercise. In

its discussion of gravity, the Trial Chamber referred to its findings about President

Karadzic’s position of authority,363 and how he used this position (and the institutions he

created) to further the criminal enterprise, thereby abusing the authority placed in him.364

223. For Srebrenica, for example, the Trial Chamber is explicit that “[i]n relation to

the gravity of the Accused’s conduct in relation to the killings after 13 July, the Chamber

found that he was the sole person in the RS with the power to prevent the Bosnian Serb

Forces from moving the Bosnian Muslim males to Zvornik to be killed. Instead, he ordered

their transfer to Zvornik, where they were ultimately killed.”365

224. If an accused is found to have a position of authority, and is found to have used

this position to further a criminal purpose, then what else could this be, than an abuse of

359 Id, para. 169. 360 Judgement, para. 6045. 361 Id, paras. 6045, 6051. 362 Id, para. 6052. 363 Id, para. 6047: “as RS as RS President and Supreme Commander of the VRS, the Accused was at the apex

of power and played an integral role in this enterprise […].” 364 Id, para. 6047: “He also established the institutions used to carry out the objective of the common plan

[…].” 365 Id, para. 6049.

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that authority? The Prosecution’s implication that the “magic words” must be used is

unpersuasive.

225. If these signposts were in some way insufficient, the Trial Chamber then

clarified: (i) “the Accused’s unique position at the apex of power in the RS and his de jure

authority over the VRS, MUP and other political organs, which he exercised in fact”; (ii)

“[t]the essential role the Accused played in the commission of the crimes in each of the

components was a reflection of his position and the manner in which he used that position

to further his objectives”; and (iii) the President Karadzic’s responsibility “as a superior for

having failed to punish the killings which took place before the evening of 13 July 1995 in

Srebrenica”, have all been “taken into consideration in relation to the gravity of the

crimes”.366 The argument that the Trial Chamber failed to take into account President

Karadzic’s abuse of authority when assessing gravity does not bear sensible scrutiny.

226. The Prosecution also alleges that the Trial Chamber failed to address that the

abuse of authority was “massive and sustained”.367 No indication exists that the Trial

Chamber considered the abuse to be insignificant, or limited in time. In fact, it refers the

reader to its findings on the Accused’s responsibility, where these factors have been

“abundantly discussed”.368 And indeed they were.

C. The Trial Chamber did not err in considering resignation as a mitigating

factors

227. The Trial Chamber found that President Karadzic’s withdrawal from public life

“had a positive influence on the establishment of peace and stability in BiH and the region

in the wake of the Dayton Agreement”.369 This finding is not in dispute. The Appeals

Chamber has already considered that President Karadzic’s agreement with Richard

Holbrooke to resign and withdraw from public life is relevant to sentencing.370

228. The establishment of peace and security, being one of international criminal

justice’s broader goals, should not be undervalued. Nor should the decision to resign from

public life for the sake of peace. In “situations of protracted conflict where peace can be

366 Id, para. 6052. 367 Prosecution Appeal Brief, para. 175. 368 Judgement, para. 6052. 369 Id, para. 6057. 370 Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal of Trial Chamber’s

Decision on Alleged Holbrooke Agreement (12 October 2009), para. 55

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fragile, all efforts must be made to encourage its preservation.”371 Many leaders have clung

to power with catastrophic results. President Karadzic’s resigning and withdrawing from

public life are acts that should be encouraged.

229. In determining Biljana Plavsic’s sentence, the Trial Chamber gave “significant

weight” to her being “instrumental in ensuring that the Dayton Agreement was accepted

and implemented in Republika Srpska”.372 It was likewise proper to attribute weight to

President Karadzic’s contribution to “the establishment of peace and stability in BiH and

the region in the wake of the Dayton Agreement” as a mitigating factor.373 In doing so, the

Trial Chamber did not commit a discernible error.

D. Conclusion

230. The Trial Chamber did not err in failing to impose a life sentence.

371 RUF SJ, para. 225. 372 Plavsic SJ, paras. 85-94. 373 Id, para. 6057.

No. MICT-13-55-A 70

III. CONCLUSION

231. The Prosecution’s appeal should be dismissed in its entirety.

Word count: 20,062.

Counsel for Radovan Karadzic